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LAWS
OF THE
STATE OF DELAWARE
ONE HUNDRED AND THIRTY- SIXTH
GENERAL ASSEMBLY
FIRST SESSION COMMENCED AND HELD AT DOVER
On Tuesday, January 8, A. D.
1991
SECOND SESSION COMMENCED AND HELD AT DOVER
On Tuesday, January 14, A. D.
1992
VOLUME LXVIII
Part II

LAWS
OF THE
STATE OF DELAWARE
ONE HUNDRED AND THIRTY-SIXTH
GENERAL ASSEMBLY
FIRST SESSION COMMENCED AND HELD AT DOVER
On Tuesday, January 8, A.D.
1991
SECOND SESSION COMMENCED AND HELD AT DOVER
On Tuesday, January 14, A.D.
1992
VOLUME LXVIII
Part II
730
CHAPTER 191
'FORMERLY
SENATE BILL NO. 130
AS AMENDED BY HOUSE AMENDMENT NO. 1
AN ACT TO AMEND TITLE 29, DELAWARE CODE RELATING TO RULES AND REGULATIONS
ESTABLISHED BY STATE AGENCIES BY ESTABLISHING APPROPRIATE PROCEDURES FOR
ASSESSING WHETHER OR NOT RULES AND REGULATIONS MAY RESULT IN TAKING OF
PRIVATE PROPERTY.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Chapter 6, Title 29, Delaware code by adding thereto a
new section to read as follows:
1605. Promulgation of Rules and Regulations by State Agencies - Review by
ittorney General To Determine Affect on Private Property Right
No rule or regulation promulgated by any state agency shall become
effective until the Attorney General has reviewed the rule or
regulation and has informed the issuing agency in writing as to the
potential of the rule or regulation to result in a taking of
private property.
Judicial review of actions taken pursuant to this section shall be
limited to whether the Attorney General has reviewed the rule or
regulation and has informed the issuing agency in writing.
The term "taking of private property" as used under this section
shall mean an activity wherein private property is taken such that
compensation to the owner of that property is required by the Fifth
and Fourteenth Amendments to the Constitution of the United States
or any other similar or applicable law of this State.
Nothing in this section shall affect any otherwise available
judicial review of agency action."
Section 2. This Act shall apply to all Rules and Regulations promulgated
after the effective date of the Act, excluding those Rules and Regulations
which do not purport to restrict the uses to which property could be put.
Approved January 24, 1992.
CHAPTER 192
FORMERLY
HOUSE BILL NO. 316
AN ACT TO AMEND CHAPTER 27, TITLE 21, DELAWARE CODE, RELATING TO
QUALIFICATIONS FOR SCHOOL BUS DRIVERS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend §2708(a)(8), Chapter 27, Title 21, Delaware Code, by
striking said paragraph in its entirety and substituting in lieu thereof the
following:
"(a)(8) The applicant shall never have been convicted of manufacture,
delivery, possession, possession with intent to deliver, or trafficking a
controlled substance or a counterfeit controlled substance classified in
Schedule I, II, III, IV, or V of Chapter 47, Title 16 in this State or any
other jurisdiction."
Approved January 24, 1992.
CHAPTER 193
136TH GENERAL ASSEMBLY
HOUSE BILL NO. 223
AN ACT TO AMEND SUBCHAPTER IV, TITLE 31 OF THE DELAWARE CODE RELATING TO
PRIVATE CHILD WELFARE AGENCIES.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Amend Subchapter IV, Title 31, Delaware Code by repealing Sections 365 -
368 inclusive.
Approved January 24, 1992.
CHAPTER 194
FORMERLY
HOUSE BILL NO. 286
AN ACT TO AMEND CHAPTER 9, TITLE 10, OF THE DELAWARE CODE RELATING TO FAMILY
COURT MASTERS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Chapter 9, Title 10, Delaware Code by deleting the number
"10" from subsection (d) of §913 as it appears in two places after the word
"within" and before the word "days" and inserting in both places the number
ui5H.
Section 2. Amend Chapter 9, Title 10, Delaware Code by adding at the end
of subsection (d) of §913 the following:
"The time period for requesting a review de novo shall not begin to run
until the Master has entered the order in writing and Family Court has
issued said 'order to the parties and attorneys. If either party has
requested a new trial, reargument, to alter or amend judgment, the time
period for requesting a review de novo shall not begin to run until the
Master has ruled on said request in writing and Family Court has issued
that ruling to the parties and attorneys. If any order or ruling is sent
by mail, an additional 3 days to request a review de novo shall be allowed."
Approved January 24, 1992.
731
732
CHAPTER 195
FORMERLY
HOUSE BILL NO. 260
AS AMENDED BY HOUSE AMENDMENT NO. 1 AND SENATE AMENDMENT NO. 1
AN ACT TO AMEND SUBPART I, SUBCHAPTER III, CHAPTER 5, TITLE 11, OF THE
DELAWARE CODE ESTABLISHING THE OFFENSE OF CRIMINAL IMPERSONATION, ACCIDENT
RELATED.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Chapter 5, Title 11 of the Delaware Code by adding a new
5907A to read as follows:
"5907A. Criminal Impersonation. Accident Related: Class G Felony.
A person is guilty of criminal Impersonation, accident related when
after being in a motor vehicle accident involving serious physical injury
or death to any person:
a driver knowingly pretends to have been someone other than
the driver of the vehicle he was operating; or
any person knowingly pretends to have been a driver of one of
the vehicles involved in the accident.
Criminal impersonation, accident related is a Class G Felony. The
driving privileges of anyone convicted of violating subsection (1) shall be
suspended by the Division of Motor Vehicles for a period of two (2) years."
Approved January 24, 1992.
CHAPTER 196
FORMERLY
HOUSE BILL NO. 304
AS AMENDED BY HOUSE AMENDMENT NO. 1
AN ACT TO AMEND CHAPTER 81, PART V, TITLE 10 OF THE DELAWARE CODE RELATING TO
LIMITATION FROM CIVIL LIABILITY FOR CERTAIN VOLUNTEERS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Paragraph (2), Subsection (a), Section 8133, Chapter 81,
Part V, Title 10 of the Delaware Code by deleting therefrom the words "is
organized and exempted from federal income tax" and inserting in lieu thereof
the following:
"was organized and exempted from federal income tax, and in the case
of a governmental entity described in Subparagraph (5)b, in
furtherance of the exercise of any governmental function".
Section 2. Amend Paragraph (5), Subsection (a), Section 8133, Chapter 81,
Part V, Title 10 of the Delaware Code by deleting therefrom paragraph (5) in
Its entirety and inserting in lieu thereof the following:
"(5) 'Organization' shall include:
Any not-for-profit organization exempt from federal income tax
under §501(c) of the Internal Revenue Code (26 U.S.C. §501(c)) as
amended or other act of Congress and engaged in any activity
within the State in furtherance of a purpose for which it was
organized; and
Any governmental entity, including the United States, the
State and any board, commission, division, office, task force or
other agency of the State or the United States, exempt from
federal income tax under §115 of the Internal Revenue Code (26
U.S.C. §115) as amended or other acts of Congress and engaged in
any activity within the State in furtherance of the exercise of
any governmental function."
Approved January 24, 1992.
CHAPTER 197
FORMERLY
SENATE BILL NO. 192
AN ACT TO AMEND CHAPTER 17, TITLE 24 OF THE DELAWARE CODE RELATING TO
PHYSICIANS' RECORDS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE
Section 1. Amend §1761, Title 24, Delaware Code by designating the current
§1761 as subsection (a) thereof and by adding thereto a new subsection (b) as
follows:
"(b) Whenever a physician licensed to practice under this Chapter dies
and has not transferred his or her records to another physician and has not
made provisions for such a transfer to occur at his/her death, the personal
representative of the physician's estate shall notify his/her patients of
record for the past 3 years by publication in a newspaper of general
circulation in the area where the physician practiced. All patients of record
who have not requested their records 30 days after publication shall be
notified by first class mall by the personal representative of the estate to
permit the patients to procure their records."
Section 2. Amend §1761, Title 24, Delaware Code by inserting before the
phrase "notification of patients" in the section heading thereof the phrase
"death of a physician:"
Approved January 24, 1992.
733
734
CHAPTER 198
FORMERLY
SENATE BILL NO. 193
AS AMENDED BY HOUSE AMENDMENT NO. 1
AN ACT TO AMEND DELAWARE CODE, TITLE 29, CHAPTER 58, REGARDING THE CONDUCT OF
OFFICERS AND EMPLOYEES OF THE STATE.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Delaware Code, Title 29, Section 5805 by inserting a new
Subsection (h) to read as follows:
"(h) Except for transportation supervisors for any school district
within this state, nothing in this Section shall prohibit an employee
or his or her spouse or children (natural or adopted) from contracting
for the transportation of school children. Such transportation
contracts may be entered into by an employee or his or her spouse or
children without public notice and competitive bidding as is provided
in Section 6916 of this Title."
Approved February 5, 1992.
CHAPTER 199
FORMERLY
SENATE SUBSTITUTE NO. 1
TO
SENATE BILL NO. 63
AS AMENDED BY SENATE AMENDMENT NO. 1
AN ACT TO AMEND CHAPTER 9, TITLE 7, DELAWARE CODE, TO PERMIT RECREATIONAL
DRIFT GILL NET FISHING FOR SHAD IN THE DELAWARE RIVER.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend §915, Chapter 9, Title 7, Delaware Code by adding thereto
a new subsection (j) to read as follows:
"(j)(1.) It shall be lawful for any person who has appropriate food
fishing equipment permits for gill nets and a recreational drift 011 net
permit issued by the Department to fish any drifting gill net, subject to
the provisions of this subsection."
It shall be unlawful for any recreational finfishermen who has
been issued a recreational drift gill net permit by the Department to fish
a drift gill net in any waters of the State except in a section of the
Delaware River, not including any tributaries thereto, located to the south
of a line beginning at the tip of the southern most jetty at the mouth of
the C & D Canal and extending due east and to the north of a line beginning
at Liston Point and continuing due east during a period of time beginning
at 12:01 a.m. on March 15 and ending at 12:00 p.m. on May 10 next ensuing
each year.
It shall be lawful for any recreational finfisherman who has been
issued a recreational drift 011 net permit for gill nets and appropriate
food fishing equipment permit for gill nets by the Department to fish a
single drift net provided it does not exceed 300 feet in length.
An application for a recreational drift gill net permit may be
submitted annually to the Department on a form supplied by the Department.
Each application shall provide credible evidence that the person applying
for the recreational drift gill net permit fished a drift gill net prior to
1984 in the Delaware River for American shad. Applications shall be
submitted to the Department prior to 4:30 p.m. on the last Friday in
February. The Department shall hold a public drawing of the applicants no
later than 4:30 p.m. on first Friday in March. The first 10 applications
drawn will be issued a recreational drift net permit to be valid until
midnight on May 10 next ensuing. If any of the 10 selected applicants fail
to obtain his/her recreational drift gill net permit from the Department by
4:30 p.m. on the second Friday in March, applicants drawn in numerical
order after the first 10 shall be authorized to be issued a recreational
drift gill net permit."
Section 2. Amend §903(e(1) by adding a new paragraph (f) to read as
follows:
735
"(f) Restrict the mesh size of recreational drift gill nets that may
be fished for American shad in the Delaware River."
Approved February 5, 1992.
736
CHAPTER 200
FORMERLY
HOUSE BILL NO. 246
AN ACT TO AMEND CHAPTER 1, TITLE 16 OF THE DELAWARE CODE RELATING TO THE STATE
BOARD OF HEALTH.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Amend Chapter 1, Subchapter II, Title 16, Delaware Code, §122(3), by adding
a new paragraph "r." to read as follows:
"r. Provide for the sanitary control, specifically addressing
drinking water, human waste disposal, and control of other vectors of human
disease, of mobile/manufactured home parks and other housing of similar
usage, which consist of more than three dwelling units or lots located on
the same or adjacent properties served by a common water and/or sewage
disposal system, and which are held out to the public for rent or lease."
Approved February 5, 1992.
CHAPTER 201
FORMERLY
SENATE BILL NO. 260
AN ACT TO AMEND TITLE 30, 5, 8, AND 18 OF THE DELAWARE CODE RELATING TO TAX
PREFERENCES.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Title 30 of the Delaware Code by striking §105 thereof,
entitled "Sunset repeal of tax preferences.", in its entirety.
Approved February 5, 1992.
CHAPTER 202
FORMERLY
HOUSE BILL NO. 415
AS AMENDED BY HOUSE AMENDMENT NOS. 1 AND 5
AN ACT TO AMEND CHAPTERS 11 AND 20 OF TITLE 30 AND CHAPTER 11 OF TITLE 5 OF
THE DELAWARE CODE AND 64 DELAWARE LAWS CHAPTER 460 AS AMENDED BY 67 DELAWARE
LAWS CHAPTER 120 AND 68 DELAWARE LAWS CHAPTER 6 RELATING TO TAX CREDITS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend §2010, Title 30 of the Delaware Code by striking the year
"1992" as the same appears in subsections (4) and (5) thereof and substituting
in lieu thereof the year "1947".
Section 2. Amend §12 of 64 Delaware Laws, Chapter 460, as amended by 67
Delaware Laws, Chapter 120, and 68 Delaware Laws, Chapter 6, by striking the
year "1992" as the same appears in said section and substituting in lieu
thereof the year "1997".
Section 3. Amend §2011, Title 30 of the Delaware Code by adding thereto new
subsections (h), (i) and (j) to read as follows:
"(h) Any taxpayer (other than a public utility as defined in Chapter 1
of Title 26) engaged in a qualified activity that, for any taxable year
('the current year') ending after December 31, 1991 or before January 1,
1994, has an average number of employees employed by the taxpayer in
full-time employment in this State during said tax year in excess of the
average number of employees employed by the taxpayer during the period
January 1, 1991 through. December 31, 1991 ("the base year") shall be allowed
a credit against the tax imposed for the current year by Chapter 19 or
Chapter 11 by virtue of §1115 or §2024 of this title.
The amount of such credit for such current year shall equal $250 times
the average number of employees employed by the taxpayer in full-time
employment within this State during the current year minus the average
number of employees employed by the taxpayer in full-time employment within
this State during the base year, rounded down to the next full number, such
difference to be defined as 'new employment'. Employees who are employed in
this State by the taxpayer for a continuous period of fewer than six months
shall not be considered in calculating the credit provided under this
subsection. However, employees employed for a continuous period of at least
six months during the base and current year which includes a period of less
than six months in either the base year or the current year shall be
considered in calculating the credit under this subsection. Employees of a
taxpayer employed at the same facility in substantially the same capacity by
a different taxpayer during all or part of the base year shall not be
considered in computing employment during the current year under this
subsection.
In the case of any taxpayer qualifying for credits under subsection
(a) or (h) of this section or §2021 of this title who provides health care
benefits as defined in §2010(15) of this title during any tax year ending
after December 31, 1991 or before January 1, 1994, the credits provided by
subsections (b)(1) or (h) (but, in the case of any taxpayer, not both) of
this section or §2021 of this title shall be increased by $250.
Notwithstanding the provisions of §2011 of this title, credits
provided by subsections (h) and (i) of this section may be earned and
applied only in tax years beginning after December 31, 1991, and ending
before January 1, 1994, subject to carryover under the provisions of
§2011(f) of this title."
Section 4. Amend §2010(3)e., Title 30 of the Delaware Code by designating
said paragraph e. as paragraph h. of §2010(3), and by striking the letter and
punctuation "d." as they appear in said paragraph and substitute in lieu
thereof the letter and punctuation "g.".
737
Section 5. Amend §2010(3), Title 30 of the Delaware Code by striking the
word "or" as it appears at the end of paragraph d. thereof, and by adding to
738 Chapter 202
52010(3) new paragraphs e., f., and g. to read as follows:
"e. Any activity more than 50% of whose annual gross receipts are
derived from computer processing or data preparation or processing services,
Including data entry (but not word processing) and making data processing
equipment available on an hourly or time-sharing basis;
Any activity more than 50% of whose annual gross receipts are
derived from engineering services including providing and supervising the
taxpayer's engineering staff on temporary contract to other firms. The term
'engineering services' does not include businesses providing engineering
personnel but not general supervision; nor does it include businesses
primarily engaged in architectural or photogrammetric engineering;
Any activity more than 50% of whose annual gross receipts are
derived from consumer credit reporting services, including adjustment and
collection services and credit reporting services. Adjustment and
collection services are establishments primarily engaged in the collection
or adjustment of claims, other than insurance. Credit reporting services
are establishments primarily engaged in providing mercantile and consumer
credit reporting services; or
Section 6. Amend 52010(3), Title 30 of the Delaware Code, by striking
paragraph d. in its entirety and substituting in lieu thereof the following:
The administration, management, or support operations, including
marketing, of any activity described in paragraphs a. through g. of this
subdivision;"
Section 7. Amend §1105, Title 5 of the Delaware Code by designating
existing 51105 as subsection (a) of said section and by adding to said section
new subsections (b) and (c) to read as follows:
'(b) For taxable years beginning after December 31, 1991, and ending
before January 1, 1994, there shall be allowed as a credit against the tax
imposed under subsection (a) of this section the applicable amounts provided
in §2011(h) or (1) (or both) of Title 30 as if the definition of 'Taxpayer'
in 52010(13) and the definition of 'qualified activity' of 52010(3) of
Title 30 also included, solely for purposes of the credit provided in this
subsection, banks subject to tax under this section, provided the taxpayer
meets the qualifications set forth in said §2011(h) or (1). Notwithstanding
the provisions of this subsection, credits arising solely by virtue of
§2011(a) shall not be allowed against the tax imposed by this chapter.
(c)(1) The amount of credit allowable under subsection (b) of this
section shall not exceed 50% of the amount of tax imposed upon the taxpayer
by subsection (a) of this section for such taxable year; and (2) The amount
of the credit determined under subsection (b) of this section for any
taxable year that is not allowable for such taxable year solely as a result
of the limitation contained in paragraph. (1) of this subsection shall be a
credit carryover to each of the succeeding nine years in the manner
described in §2011(f) of Title 30."
Section 8. Amend §2010, Title 30 of the Delaware Code by adding to said
section new subsections (14) and (15) to read as follows:
"(14) 'Full-time employment' means employment of one individual for at
least 35 hours per week, not including absences excused by reason of
vacations, illness, holidays or similar causes.
(15) 'Health care benefits' means financial protection against the
medical care cost arising from disease and accidental bodily injury for
which cost the employer pays at least 50% for employees employed by the
employer for a continuous period of six months or more."
Section R. Amend Section 2020(1), Title 30 of the Delaware Code by adding a
new subparagraph e. to read as follows:
When socio-economic data becomes available from the 1990 Census,
the Director of the Delaware Development Office in conjunction with the
Secretary of Finance shall evaluate all census tracts using the
following criteria: percent of persons below poverty level; percent of
households receiving public assistance; unemployment rate; median
household income; a significant presence of vacant property within the
target area; the character of the Community; and population. Based on
these criteria census tracts shall be reallocated on the following
basis: 10 in City of Wilmington; 10 in New Castle County outside of the
City of Wilmington; 5 in Kent County; and 5 in Sussex County. The
provisions of this subparagraph shall supercede subparagraph d. of this
subsection upon the reallocation of the census tracts.
Upon request, the Director of the Delaware Development Office, in
conjunction with the Secretary of Finance, may consider extending the
geographic boundary lines of the target area where the adjacent
community otherwise satisfies the above-referenced criteria."
Section 10. Amend Title 30 of the Delaware Code by adding thereto a new 51115
to read as follows:
"51115. Subchapter S -- Business Tax Credits
A resident shareholder in a small business corporation having made a
valid election under Subchapter S of the Internal Revenue Code in effect for
any tax year shall be allowed as a credit a proportionate share, according
to the percentage of the stock in such corporation owned by the resident on
the last day of the taxable year of such corporation, of any business tax
credits allowed such corporation under Subchapters II, III, or V of Chapter
20 of this Title; provided, however, that such credit shall not exceed 50%
times the maximum rate for the tax year under §1102 of this Chapter times
the resident's share of the distributable income of the Subchapter S
corporation."
Section 11. Amend Title 30 of the Delaware Code by adding thereto a new
52023 to read as follows:
"52023. Subchapter S Corporations.
Whenever a corporation having made a valid election under Subchapter S
of the Internal Revenue Code is subject to tax under Chapter 19 of this
Title and is eligible for credits under Subchapters II, III, or V of this
Chapter, such credits shall be applied by multiplying the credits calculated
under 52011, 52021, or §2041 (credits under 52011 and 52021 to include any
adjustments by virtue of 52042, 52043, or 52044 of this title) by the
percentage of its stock owned by non-resident individuals on the last day of
its tax year."
Section 12. Amend Chapter 20, Title 30 of the Delaware Code by adding
thereto a new 52024 to read as follows:
"52024. Credit against Personal Income Tax,
(a) Notwithstanding any reference in this chapter to Chapter 19 of this
title, any taxpayer not subject to taxation under Chapter 19 of this title
may claim such credits calculated under 52011, 52021 or 52041 of this
Chapter (including adjustments thereto under 52042, 52043 and §2044 of this
title); provided, however, that the amount of credit claimed by an
Individual under Chapter 11 shall not exceed: (1) the multiplicative product
of the following: (A) the amount of credit calculated under 52011 or 52021
of this Chapter; and (B) the percentage of ownership in the organization
attributable to the taxpayer; or (2) 50% of the amount of tax imposed upon
such individual by Chapter 11 of this title for such taxable year; and
provided further that 51115 and 52023 of this title and not this section
shall govern taxpayers electing under Subchapter S of the Internal Revenue
Code and their shareholders."
Section 13. Amend 52010(13), Title 30 of the Delaware Code, by striking
said subsection in its entirety and substituting in lieu thereof a new
subsection (13) to read as follows:
"(13) 'Taxpayer' means any person or corporation carrying on business in
this State including a corporation having made a valid election under
Subchapter S of the Internal Revenue Code, irrespective of the state of
residence of its shareholders."
Chapter 202 739
740 Chapter 202
Section 14. Amend §2011, Title 30 of the Delaware Code, by adding thereto a
new subsection (k) to read as follows:
"(k) Any taxpayer (other than a public utility as defined in Chapter 1,
Title 26) that for any taxable year has a qualified investment in a
qualified facility that is placed in service by the taxpayer during such
taxable year shall be allowed a credit under this section irrespective of
the limitations contained in subsections (a)(ii), (b), or (c) of this
section; provided, however, as follows:
(1) Such investment must equal or exceed the greater of:
(A) $1 million; or (B) 15% of the unadjusted basis in such facility at
the close of the taxable year preceding the date on which installation
or construction of the investment described in this paragraph commenced;
2) Substantially all the use of the qualified facility by the taxpayer
occurs in the activity of manufacturing or wholesaling as defined
respectively in §2701(2) or §2901(7)a. of this title;
The amount of the credit allowed under this subsection shall be 75%
of the credit allowable if the taxpayer were eligible for credit under
subsection (a) of this section subject, however, to limitation and
carryover provisions under subsections (d) and (f) of this section.
Credits claimed in any tax year (including amounts carried over from
previous tax years) shall not exceed the difference between $500000 and
the amount of credits claimed under 62012 of this chapter for the twelve
months comprising said tax year. Amounts of credit not used by virtue
of the preceding sentence may be carried forward as if such unused
credits arose by virtue of §2011(d);
No facility may be eligible for credits under both this subsection
and subsection (a) of this section;
Should the qualified facility be an expanded facility, total wages
paid during the taxable year by the taxpayer to qualified employees
employed at the qualified facility must equal or exceed 857. of the wages
paid by the taxpayer to qualified employees at the same facility during
the twelve months preceding the date on which the qualified facility was
placed in service; and
Construction of the qualified facility was commenced after the
enactment of this Act into law. For purposes of this subsection,
construction of a facility shall commence on the date on which site
alteration first occurs."
Section 15. Amend §2012, Title 30 of the Delaware Code, by adding to said
section a new subsection (c) to read as follows:
"(c) Any taxpayer placing in service a facility meeting the conditions
set forth in §2011(k) of this title shall be allowed a reduction in license
fees other than those set forth in §2902(c)(4) equal to 75% of the reduction
allowable to taxpayers qualifying under subsection (a) of this section;
provided, however, that such credits may not exceed $500,000 over their ten
year life. No taxpayer may be eligible for reductions under both this
subsection and subsection (a) of this section for the same facility."
Section 16. Amend §2021, Title 30 of the Delaware Code, by adding thereto a
new subsection (c) to read as follows:
"(c) In the case of any taxpayer that (1) places in service, within any
targeted area, as defined by §2020(1) of this title, a qualified facility
In which the taxpayer is engaged in a qualified activity described in
§2010(3) of this title, and (2) satisfies the requirements contained in
§2011(k) of this title, such taxpayer shall be allowed a credit equal to 75%
of the credit allowable under subsection (a) of this section, subject,
however, to limitation and carryover provisions under §2011(d) and (f) of
tilts Chapter. The credit claimed in any tax year (including amounts carried
over from previous tax years) shall not exceed the difference between
$500,000 and the amount of credits claimed under §2022 of this title for the
twelve months comprising said tax year. Amounts of credit not used by
virtue of the preceding sentence may be carried forward as if such unused
credits arose by virtue of §2011(f). No taxpayer may be eligible for credit
under both this subsection and subsection (a) of this section for the same
facility."
Section 17. Amend §2022, Title 30 of the Delaware Code, by
adding thereto a new subsection (c) to read as follows:
"(c) In the case of any taxpayer that (1) places in service, within any
targeted area, as defined by §2020(1) of this title, a qualified facility in
which the taxpayer is engaged in a qualified activity described in 52010(3)
of this title, and (2) satisfies the requirements contained in §2011(k) of
this title, such taxpayer shall be allowed a reduction in license fees equal
to 75% of the reduction allowable under subsection (a) of this section;
provided, however, that said reduction shall be allowed against only those
license fees imposed by §2902(c)(1), (3) and (5) and §2702(b)(1) and (3) of
this title, that no facility shall be eligible for reduction under both this
subsection and subsection (a) of this section, and that credits under this
subsection shall not exceed $500,000 over the 180 month life of the credits."
Section 18. Amend 52010(5), Title 30 of the Delaware Code by adding the
following sentence to the end of said subsection:
"For property placed in service after July 1, 1992, a facility which
constitutes a replacement facility, as defined in subsection (6) of this
section, shall be deemed an expanded facility, and the investment shall
be deemed a qualified investment, to the extent the taxpayer's
investment in the replacement facility exceeds the greater of: (a) 150%
of the unadjusted cost basis of the facility which is being replaced; or
(b) 100% of the market value of the facility which is being replaced."
Section 19. Amend Chapter 20, Title 30 of the Delaware Code, by adding
thereto a new Subchapter V to read as follows:
"Subchapter V.
Green Industries Credits
52040. Definitions
'Toxic Release Inventory' means an inventory of chemical releases as
required under the Federal Superfund Amendments and Reauthorization Act of
1986 (42 U.S.C. 59601 et seq.).
'Other wastes' means measurable solid waste products other than
those reported under the Toxic Release Inventory and any substances released
in the air or in the waters of the State for which a permit has been issued
under Chapters 60 or 63 of Title 7.
'Solid waste' means solid waste as defined in 56002 of Title 7.
'Recycled materials' means materials that have been removed from the
Delaware solid waste stream and have been processed into a value added
material.
'Source reduction' means any practice which reduces the production
of waste products prior to recycling, treatment, or disposal.
'Taxpayer' has the same meaning as set forth in §2010(13) of this
chapter.
§2041. seductions in Waste Release.
In the case of any manufacturer, as defined in 52701(2) of this
title, who in any taxable year complies with the requirements of subsection
(b) there shall be allowed a credit against the tax imposed under Chapter 19
or Chapter 11 by virtue of 51115 or 52024 of this title.
The amount of the credit under subsection (a) shall be either,
(1) In the case of a manufacturer that, by source reduction techniques,
voluntarily reduces by at least 20% the weight of wastes reported under
the Toxic Release Inventory reflected by Inventory Report forms filed
for a year ending in such tax years compared with such amount reported
Chapter 202 741
742 Chapter 202
for the immediately preceding twelve months, the credit shall be $250
for each full 10% of waste reduction during said tax year and each of
the four succeeding tax years during which such reduced amount of
release is maintained, or
(2) In the case of a manufacturer that, during such tax year, by source
reduction techniques, voluntarily reduces by at least 50% the weight of
other wastes released in the current tax year compared with such amount
released in the immediately preceding twelve months, the credit shall be
$250 for each full 10% in waste reduction during said tax year and each
of the four succeeding tax years during which such reduced amount of
release is maintained.
(c) Unused credits may be carried forward for four years following the
year in which the credit could otherwise be taken.
§2042. Use of Recycled Materials as Raw Materials of Manufacturing.
In the case of any manufacturer, as defined in §2701(2) of this
title, who (1) in any taxable year derives at least 25%, by weight, of its
raw materials from either (1) recycled materials or (i1) materials removed
from the Delaware solid waste stream; (2) satisfies the requirements of
§2011(a) of this title for the allowance of a credit against the tax imposed
by Chapter 19 or Chapter 11 by virtue of §1115 or §2024 of this title for
the taxable year of the taxpayer in which such qualified facility is placed
in service by the taxpayer; and (3) uses such materials in its qualified
facility as defined in §20/0 of this title, the amount of such credit shall
be determined as provided in subsection (b) of this section.
The amount of the credit allowed under subsection (a) shall, for
such tax year, be the amount of credit allowed under §2011 of this title
applied with respect to such qualified facility by substituting '$500' for
'$250' in §2011(b)(1) and (2) of this title; or, in the event the taxpayer
also qualifies for credit under §2021 of title, by substituting '$750'
instead of '$500' for '$250' in §2011(b)(1) and (2) of this title.
Unused credits may be carried forward for nine years following the
year in which the credit could otherwise be taken.
§2043. Processing of Waste Materials.
In the case of any taxpayer, as defined in §2010(13) of this title,
who (1) in any taxable year is engaged in the business of processing
materials removed from the Delaware solid waste stream for resale as raw
materials to persons defined as manufacturers under §2701(2) of this title;
(2) satisfies the requirements of §2011(a) of this title for the allowance
of a credit against the tax imposed by Chapter 19 or Chapter 11 by virtue of
§1115 or §2024 of this title for the taxable year of the taxpayer in which
such qualified facility is placed in service by the taxpayer; and (3) whose
qualified investment is devoted entirely to the processing and resale of
materials removed from the Delaware solid waste stream as described in this
section; the amount of such credit shall be determined as provided in
subsection (b) of this section.
The amount of the credit allowed under subsection (a) shall be the
amount of credit allowed under §2011 of this title applied with respect to
such qualified facility by substituting 1500' for '$250' in §2011(b)(1) and
(2) of this title; or, in the event the taxpayer also qualifies for credit
under §2021 of title by substituting '$750' instead of '$500' for '$250' in
§2011(b)(1) and (2) of this title.
Unused credits may be carried forward for nine years following the
year in which the credit could otherwise be taken.
§2044. Collection and Distribution of Recysled Materials.
(a) In the case of any taxpayer, as defined In §2010(l3) of this title,
who (1) in any taxable year is engaged in the business of collecting
materials for recycling and distributing recycled materials; (2) satisfies
the requirements of §2011(a) of this title for the allowance of a credit
against the tax imposed by Chapter 19 or Chapter 11 by virtue of §1115 or
§2024 of this title for the taxable year of the taxpayer In which such
qualified facility is placed in service by the taxpayer; and (3) whose
qualified investment is devoted entirely to collection of materials for
recycling and distribution of recycled materials as described in this
section; the amount of such credit shall be determined as provided In
subsection (b) of this section.
The amount of the credit against tax allowed under subsection (a)
shall, for such tax year, be the amount of credit allowed under §2011 of
this title applied with respect to such qualified facility by substituting
'$500' for '$250' in §2011(b)(1) and (2) of this title; or, in the event the
taxpayer also qualifies for credit under §2021 of title by substituting
'$750' instead of '$500' for '$250' in §2011(b)(1) and (2) of this title.
Unused credits may be carried forward for nine years following the
year in which the credit could otherwise be taken.
§2045. Exceptions and Procedures.
No taxpayer is eligible for any credit under this Subchapter unless
and until a determination of eligibility has been made by both the Director
of the Delaware Development Office and the Secretary of the Department of
Natural Resources and Environmental Control and certified In writing to the
Director of Revenue, who shall implement said determination. A
determination as to the eligibility of a taxpayer for credit under this
Subchapter and to the amount of such credit shall be reviewable by the
Superior Court only for abuse of discretion and, in any case,
notwithstanding §329 of this title, shall not be appealable to the Tax
Appeal Board.
No taxpayer shall be eligible for any credit under this Subchapter
if, within twelve months immediately prior to application, but after the
effectiveness of this Subchapter, the taxpayer or any of its executive
officers or directors has been convicted of any criminal offense involving
environmental pollution or has been the subject of any administrative
penalty or order by the Department of Natural Resources and Environment
Control or any agency of the United States by which it was finally
determined that the taxpayer violated any state or federal statute or
regulation prohibiting environmental pollution.
The credits allowed under this. subchapter are exclusive of one
another, and a taxpayer may claim creditsunder only one of sections 2041,
2042, 2043, or 2044 of this title in any tax year."
Section 20. If any provision of this Act, or the application thereof to any
person or circumstance is held invalid, such invalidity shall not affect other
provisions or applications of this Act that can be given effect without the
invalid provision or application, and to this end the provisions of this Act
are severable.
Section 21. This Act shall be effective for tax years ending after December
31, 1991; provided that subsequent limitations on effectiveness shall be as
stated in the Act.
Approved February 6, 1992.
744 Chapter 202
CHAPTER 203
FORMERLY
HOUSE BILL NO. 416
AN ACT TO AMEND CHAPTER 11 OF TITLE 30 AND CHAPTER 50 OF TITLE 29 OF THE
DELAWARE CODE RELATING TO PERSONAL INCOME TAX CREDITS FOR CERTAIN
QUALIFIED INVESTMENTS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Title 30 of the Delaware Code by adding thereto a new
§1116 to read as follows:
"§1116. Delaware Investment Credit.
A resident and non-resident individual shall be allowed a credit against
that individual's tax otherwise due under this chapter in an amount equal to
151. of the individual's investment that is qualified under Subchapter VIII,
Chapter 50 of Title 29 of the Delaware Code ('The Delaware Investment Tax
Credit Program') and certified as such by the Director of the Delaware
Development Office to the Director of Revenue. Notwithstanding §329 of this
title to the contrary, determinations by the Delaware Economic Development
Authority as to the qualification of any investment under the Delaware
Investment Tax Credit Program shall not be appealable to the Tax Appeal
Board. In no event shall the credit allowable under this section exceed the
tax otherwise due under this chapter. Unused credits under this section may
be carried forward four years from the tax year in which they are certified
under the Delaware Investment Tax Credit Program."
Section 2. Amend Chapter 50 of Title 29 of the Delaware Code by adding
to said Chapter a new Subchapter VIII to read as follows:
"Subchapter VIII.
Delaware Investment Tax Credit Program
§5095. Legislative findings: authorization.
The General Assembly finds that the growth of small businesses in the
State results in increased job opportunities for Delaware residents, produces
more spending in the State and increases tax bases. Existing or new small
businesses and recently displaced Delaware employees beginning new businesses
can provide significant economic benefits to the State provided they can
obtain sufficient equity financing to carry them from start-up through the
initial development phases of a business. In order to encourage the increased
availability of risk equity capital to these enterprises, the Delaware
Development Office through the Delaware Economic Development Authority is
authorized to establish, and issue certifications of eligibility for investors
qualifying for the Investment Tax Credit Program.
§5096. Eligibility for tax credits.
The Delaware Economic Development Authority ('the Authority') shall, by
rules and regulations, establish the Delaware Investment
Tax Credit Program ('the Program'), which Program shall provide for
qualification of businesses to receive investment from individuals obtaining
tax credit certification under the Program and for the certification of
qualified investments by individuals for tax credits under §1116 of Title 30.
The Authority shall by rule or regulation set forth qualifications for
participation in the Program in accordance with §5097 and §5098 of this title
and may issue rules or regulations relating to such other matters as, in the
judgment of the Authority, are necessary or desirable to further the purposes
of the Program, not inconsistent with the provisions of this Subchapter.
Rules or regulations issued under this Subchapter shall have the force and
effect of law.
§5097. Oualification of Businesses seeking investment under the Program.
Without limitation, the requirements for qualifying for receipt of
investment capital under the Program shall include the following:
.,11,111Mb,
0
Chapter 203 745
(a) Businesses may apply to the Delaware Economic Development Authority
for investment under the Program provided:
Such business had annual gross revenues of $5,000,000 or less
during the full twelve month period immediately preceding the date
on which it filed its application for investment;
The operation of the business must be the full-time activity
of a natural person owning at least 101. of the voting interests in
the business;
The investment qualified for certification under this Chapter
must be expended on plant, equipment, research and development or
acquisition of inventory or raw materials (provided the plant or
equipment is to be installed, the research and development to
occur, and the inventory or raw materials to be accumulated, in
Delaware) or for such other purpose as, in the Authority's
discretion, promotes the purposes of the Program; and
Such application is made in such form and at such time as the
Authority may by regulation prescribe.
(b) No owner of more than 50% of the voting interests in the business
nor such owner's spouse, parents, brothers, sisters, or children shall be
eligible for tax credit under this Subchapter for investment in such
business. For purposes of this subsection, ownership by the spouse, parents,
brothers, sisters, or children of an owner shall be attributed to such owner
for purposes of determining whether such owner owns more than 50% of the
voting interests in the business.
(c) Applications for businesses seeking investment qualifying under
this Chapter shall be subject to approval as follows:
Business applications shall be reviewed by the Council on
Development Finance ('the Council') which shall evaluate such
applications based on criteria established by the Authority through its
rulemaking authority; and
Based on such review, the Council shall recommend applications for
approval by the Chairman of the Delaware Economic Development
Authority. No application shall receive any investment qualifying for
tax credits under the Program unless and until it has been recommended
for approval by a majority of the Council and has been approved by the
Chairman of the Delaware Economic Development Authority.
§50913. Certification of individuals for tax credits.
Without limitation, the requirements for qualifying for
certification of individuals' Investments for tax credits under the Program
shall include the following:
(a) Individuals may apply for tax credit certification provided:
Such Individual's investment is in a business approved to
receive such investment under §5097 of this title;
Such investment must be not less than $10,000 or more than
$100,000 in any one business; provided that this paragraph shall
not limit an applicant from making other investments in the
business for which a tax credit is not requested; and
Such application shall be made in such form and at such time
as the Authority may by regulation prescribe.
(b) Applications by individuals for investment tax credit certification
shall not be approved to the extent that:
The investment is in excess of 151. of the actual investment
made during any tax year;
Total shares of voting stock received in exchange for
746 Chapter 203
Investment certified for tax credits under this Chapter exceed 50%
of the voting shares of stock outstanding in the business
qualifying for investment under the Program.
No investment in any business shall be certified: (1) unless other
investments in the same business qualifying for certification under this
Chapter along with said investment amount in the aggregate to at least
$25,000, or (2) if such investment along with all investments in the same
business already certified under this Chapter exceed $950,000;
No application shall be approved for any investment under whose
terms the investor obtains a return of the principal invested at any time
prior to the end of five years from the date of the investment or under whose
terms the investment is not at risk in the qualifying business.
Notwithstanding this paragraph, the investor may transfer his or her
investment at.any time and may transfer any unused tax credits certified under
this Chapter but only as part of the transfer of the investment and only so
long as the transferor and transferee of the unused credits meet whatever
reporting requirements may be established by the Director of Revenue or the
Authority, or both; and
The Authority may not issue in the aggregate more than $3,000,000
in tax credit certifications nor may it issue any certifications after
December 31, 1995.
§5099. Revocation of qualification or certification.
(a) The Delaware Economic Development Authority may, after notice and
an opportunity for a hearing, revoke any business' qualification for receipt
of investments under this program if the Authority finds:
any material representation made by the business or by any
person on behalf of such business in connection with an application
under this subchapter was false when made; or
the application otherwise violates any conditions established
for such application by the Authority. If any such qualification
is revoked, the business and any person making application on
behalf of said business shall be required immediately to pay the
State of Delaware the full amount of any tax credit certifications
authorized for investment in said business whether or not such
certificates have yet been used to obtain tax credits, plus a
penalty of 100% the amount of such certificates. The validity of
tax credit certifications issued for investment in such business
shall not be affected by revocation of qualification of said
business for participation in the Program.
(b) The Delaware Economic Development Authority may, after notice and
an opportunity for a hearing, revoke any tax credit certification issued under
this program if the Authority finds:
any material representation made by the applicant for such
certification in connection with an application under this
subchapter was false when made; or
the application otherwise violates any conditions established
for such application by the Authority. If any such certification
is revoked, the applicant shall be required immediately to repay
the State of Delaware the full amount of any tax credit taken under
§1116 of Title 30 as well as a penalty of 100% of such credit. In
the event the applicant has transferred unused credits to a
transferee, the applicant shall be liable for repayment of the full
amount of the certifications plus 100% thereof as penalty. Unless
a transferee knew of the falsity of facts represented by the
applicant at the time he obtained an interest in unused tax
credits, the validity of such unused credits shall not be affected
by the revocation of the applicant's certification.
(c) The Authority is authorized to require that any application or such
other document as it requires to be filed with the Authority be submitted
under penalties of perjury.
Notwithstanding §581 of Title 30, the Director of Revenue may
disclose tax return information of any applicant to the Authority whenever the
Authority notifies the Director of Revenue that such information is necessary
or desirable for any determination required under this Chapter. The Authority
may not further disclose any information received under this subsection except
to the Council on Development Finance and then only to the extent necessary
for the Council to carry out the duties specified in §5097 of this title.
The Authority and the Council on Development Finance shall not
disclose to any person, other than in compliance with a proper judicial order,
any information contained on any application for qualification for investment
other than to any applicant for tax credit certification, provided the
business applicant authorizes such disclosure, and to the Director of Revenue."
Section 3. If any provision of this Act, or the application thereof to
any person or circumstance is held invalid, such invalidity shall not affect
other provisions or applications of this Act that can be given effect without
the invalid provision or application, and to this end the provisions of this
Act are severable.
Section 4. This Act shall be effective upon its enactment into law;
provided, however, that qualification of businesses for investments or
individuals for tax credit certification shall not occur prior to issuance of
rules and regulations under this Act by the Delaware Economic Development
Authority.
Approved February 6, 1992.
Chapter 203 747
748
CHAPTER 204
FORMERLY
HOUSE BILL NO. 417
A BOND AND CAPITAL IMPROVEMENTS ACT OF THE STATE OF DELAWARE AND CERTAIN OF
ITS AUTHORITIES DEAUTHORIZING FROM THE DEPARTMENT OF CORRECTION AND THE
DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL PRIOR GENERAL
OBLIGATION BOND AUTHORIZATIONS AND AUTHORIZING THE ISSUANCE OF GENERAL
OBLIGATION BONDS OF THE STATE; REVERTING AND REPROGRAMMING CERTAIN FUNDS OF
THE STATE; SPECIFYING CERTAIN PROCEDURES, CONDITIONS AND LIMITATIONS FOR
THE EXPENDITURE OF SUCH FUNDS; AND AMENDING CERTAIN PERTINENT STATUTORY
PROVISIONS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE
(Three-quarters of all members elected to each House thereof concurring
therein):
Section 1. Deauthorization of Prior General Obligation Bond
Authorizations The State hereby repeals the authorization to issue bonds,
the proceeds of which were heretofore appropriated to the following
departments and agencies for the following projects and amounts:
Project
Department, Agency, Authorized Appropriation
or Instrumentality Vol. & Ch. Code Amount
Department of Correction 68/13 38-04-06-6113 $3,100,000
Department of Natural Resources
& Environmental Control 68/156 40-08-01-6212 3.141.32a
Section 2. Reauthorization and Authorization of Twenty-Year Bonds.
The State hereby reauthorizes and authorizes the issuance of Two Million Four
Hundred Ninety-One Thousand Three Hundred Twenty-Three Dollars ($2,491,323) of
bonds to which the State shall pledge its full faith and credit. Bonds
reauthorized and authorized to be used by this Section shall mature not later
than twenty (20) years from their date of issuance. The proceeds of such
bonds are hereby appropriated for a portion of the purposes set forth in the
"Fiscal Year 1992 Capital Improvements Project Schedule" attached hereto and
made a part hereof and summarized as follows:
Section 3. Reauthorization of Ten-Year Bonds. The State hereby
reauthorizes the issuance of Four Million Dollars ($4,000,000) in bonds to
which the State shall pledge its full faith and credit. Bonds reauthorized to
be issued by this Section shall mature not later than ten (10) years from
their date of issuance. The proceeds of such bonds are hereby appropriated
for a portion of the purposes set forth in the "Fiscal Year 1992 Capital
Improvements Project Schedule" attached hereto and made a part hereof and
summarized as follows:
IOTAL $6.241.323
Department. Agency or Instrumentality AMOIDi
Delaware Development Office $ 250,000
Department of Services for Children,
Youth & Their Families 1,700,000
Delaware Technical & Community College 541.32a
TOTAL 2.491.323
Department. .gency or Instrumentality Amount
Department of Administrative Services $3,000,000
Department of Correction 1.000 000
TOTAL $4.000.000
Three Million One Hundred Thousand Dollars ($3,100,000) in aggregate
principal amount of bonds authorized by this Section 3 shall not be subject
to, and shall not be counted against, the authorization limit contained in
Title 29, Delaware Code, Section 7422.
Section 4. Reversion to the First State Improvement Fund. On the
effective date of this Act, the State Treasurer shall transfer the sum of Six
Hundred Twenty-Nine Thousand Eight Hundred Thirty-Five Dollars ($629,835) to
the First State Improvement Fund (12-05-03-9600) from the following project:
Project
Department, Agency, Authorized Appropriation
or Instrumentality Vol. & Ch, Code Amount
Delaware Development Office 67/285 10-03-03-9652 $629 835
TOTAL $629.835
Section 5. AppBmrjAtjstn_Qf_fj_tjt_S±a±e_lmpraysmEat_Ejmd. The State
hereby authorizes the appropriation of Two Million Five Hundred Thousand
Dollars ($2,500,000) from the First State Improvement Fund (12-05-03-9600) for
the purpose set forth in the "Fiscal Year 1992 Capital Improvements Project
Schedule" attached hereto and made a part hereof.
Department. Agency or Instrumentality Amount
Delaware Development Office $2 500 000
TOTAL $2.500.000
Section 6. Transfers to the State Treasurer's Bond Reversion
Account. On the effective date of this Act, the State Treasurer shall
transfer the remaining appropriation balances, not in excess of the amounts
indicated below in the enumerated project accounts, to the State Treasurer's
Bond Reversion Account (12-05-03-8101).
Project
Department, Agency, Authorized Appropriation
or Instrumentality Vol. & Ch. Code Amount
Budget Office 67/285 10-02-01-6113 $ 38,463
Dept.of Administrative Services 65/385 30-05-10-5718 150,000
Dept.of Administrative Services 67/285 30-05-10-6120 17,346
Department of Natural Resources
& Environmental Control 65/385 40-05-01-5712 45,400
Department of Natural Resources
& Environmental Control 67/46 40-08-01-6012 1,258,677
Department of Public Safety 66/360 45-01-01-5912 2
Department of Public Safety 67/285 45-06-08-6112 4
Chapter 204 749
750 Chapter 204
Delaware National Guard 67/46 76-01-01-6012 1.289
TOTAL $1.511.181
Section 7. Transfers from the State Treasurer's Bond Reversion
Account. Notwithstanding the provisions of other State law, the State
Treasurer shall transfer, as funds become available, the sum of One Million
Five Hundred Forty-One Thousand One Hundred Forty-Two Dollars ($1,541,142)
from the State Treasurer's Bond Reversion Account (12-05-03-8101) to the
following departments In the following amounts for the purposes set forth in
the "Fiscal Year 1992 Capital Improvements Project Schedule, Reversion &
Reprogramming Column" attached hereto and made a part hereof:
Department. Agency. or Instrumentality Amount
Delaware Development Office $ 282,465
Delaware Technical & Community College 1.258.677
TOTAL $1.541.14Z
Section 8. Transfers from the School Bond Reversion Account.
Notwithstanding the provisions of Chapter 75, Title 29, Delaware Code or any
other State law, the State Treasurer shall transfer, as funds become
available, the sum of Ninety-Seven Thousand Three Hundred Seventy Dollars
($97,370) on deposit in the School Bond Reversion Account (12-05-03-8102) for
the following purposes in the following amounts as set forth in the "Fiscal
Year 1992 Capital Improvements Project Schedule, Reversion & Reprogramming
Column" attached hereto and made a part hereof:
Department. Agency or Instrumentality Amount
Delaware Development Office $97.370
TOTAL $97.370
DELANARE DEVELOPMENT OFFICE
Section 9. Economic Development Fund. Amend Section 29(d) (e) of
Volume 66, Chapter 360 of the Laws of Delaware by adding the phrase " , data
processing, engineering, financial services" after the phrase
"agricultural-related businesses" and before the phrase "and the
administration and management support required for these activities;".
Section 10. Relocation Assistance Fund. It is the Intent of the
General Assembly that funds appropriated in Section 5 of this Act provide
out-of-state businesses with financial assistance to offset some of the
expenses associated with physically relocating personnel and/or equipment
related to the establishment of their Delaware operation. The Fund will be
administered by the Delaware Development Office. The relocation expenses will
be based on a formula of $5,000 maximum for each new full-time permanent
Delaware job created. Qualifications for this program are as follows:
-- New businesses will be from targeted industries which Include
manufacturers, wholesalers, laboratories, data processing, engineering,
financial services, or administration and/or management support for the
above industries.
-- The new business must provide a minimum of 25 new jobs by either
transferring out-of-state employees to new residences in Delaware or by
hiring new employees for the Delaware Operation.
The amount of relocation assistance that any new business would be reimbursed
under this program would be a maximum of $500,000.
DEPARTMENT OF SERVICES FOR CHILDREN YOUTH & THEIR FAMILIES
Section 11. NCC Secure Detention Center. It is the intent of the
General Assembly that funds appropriated in Section 2 of this Act for the
Secure Detention Center be transferred to the Department of Administrative
Services for continued project oversight. The funds appropriated herein shall
not be encumbered or disbursed without the approvals of the Secretary of the
Department of Services for Children, Youth & Their Families and the Secretary
of the Department of Administrative Services.
DEPARTMENT Of CORRECTION
Section 12. Minor Capital Improvements and Equipment. It is the
intent of the General Assembly that One Million Dollars ($1,000,000)
appropriated in Section 3 of this Act to the Department of Correction
("Department") be used to correct statewide correctional facility deficiencies
as identified and prioritized in the professional engineering survey to be
completed by March 1992. The Department of Administrative Services shall
provide technical oversight of all projects to be accomplished.
Section 13. pond Verification. All bonds issued, or herein before or
herein authorized to be issued, by the State are hereby determined to be
within all debt and authorization limits of the State.
Section 14. Inconsistency. Insofar as the provisions of this Act are
inconsistent with the provisions of any general, special, or local laws, or
parts thereof, the provisions of this Act shall be controlling.
Section 15. Severability. If any section, part, phrase, or provision
of this Act or the application thereof be held invalid by any court of
competent jurisdiction, such judgment shall be confined in its operation to
the section, part, phrase, provision, or application directly involved in the
controversy in which such judgment shall have been rendered and shall not
affect or impair the validity of the remainder of this Act or the application
thereof.
Section 16. Effective Date This Act shall take effect in accordance
with the provisions of State law.
Approved February 6, 1992.
Chapter 204 751
752
CHAPTER 205
FORMERLY
HOUSE BILL NO. 302
AS AMENDED BY SENATE AMENDMENT NO. 1
AN ACT TO AMEND CHAPTER 5, TITLE 4, OF THE DELAWARE CODE RELATING TO ALCOHOLIC
LIQUORS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds
of all members elected to each House thereof concurring therein):
Section 1. Amend Subchapter II, Chapter 5, Title 4 of the Delaware Code by
adding a new section designated as §512A which shall read as follows:
"§512A. Brewery-Pubs
(a) Subject to the provisions, restrictions and prohibitions of this Title,
the Commission may grant a brewery-pub license to each qualified applicant
therefor. No person shall own or operate a brewery-pub unless licensed to do
so by the Commission. For purposes of this section, a brewery-pub shall be an
establishment in which beer is manufactured on the premises of the licensed
establishment, limited to restaurants owned or leased by the brewery-pub
applicant; and where beer is manufactured in the establishment, and is sold
for on-premises consumption, in conjunction with the service of complete meals
for consideration.
(b) The following conditions and restrictions shall apply to the holder of
each brewery-pub license;
It must be situated on the premises of, or be physically a part of
a restaurant;
It may brew, bottle, and sell only beer at a single licensed
establishment;
It shall brew not more than two thousand (2,000) barrels of beer
in any calendar year;
It may sell solely for on-premises consumption all beer
manufactured in the licensed establishment;
It shall be prohibited from owning or operating, or being
affiliated with any other manufacturer, importer, or supplier of
alcoholic liquor either in or without this State.
(c) It shall be unlawful for a person to operate a brewery-pub if:
The restaurant portion of the licensed establishment fails to
offer complete meals for consideration to patrons or fails to operate
as a bona fide restaurant as defined by Commission Rules or this Title.
The license is denied, cancelled, suspended, or revoked for any of
the grounds contained in §543 or §561 of this Title;
The business is transferred to a different location;
(d) This Section shall not prohibit the granting of a restaurant license to
sell alcoholic liquors, for on-premises consumption, as provided in §512 of
this Title.
(e) The Commission may make and publish such rules and regulations with
respect to the assessment and payment of the tax on beer, as contained in §581
of this Title, as it deems proper, and all such rules and regulations that are
not inconsistent with the provisions of this Title shall have the force and
effect of law."
Section 2. Amend §554, Subchapter IV, Chapter 5, Title 4 of the Delaware
Code by adding thereto a new subsection, designated as subsection (ff), which
new subsection shall read as follows:
Chapter 205
"(ff) For a brewerypub license, the fee shall be $1,000."
Approved February 11, 1992.
753
754
CHAPTER 206
FORMERLY
HOUSE BILL NO. 354
AS AMENDED BY HOUSE AMENDMENT NO. 1 AND SENATE AMENDMENT NO. 1
AN ACT TO AMEND CHAPTER 25, TITLE 24, DELAWARE CODE RELATING TO PHARMACY.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE: (Two-thirds
of all members elected to each House thereof concurring therein):
Section 1. Amemd Chapter 25, Title 24, Delaware Code by striking said
chapter in its entirety and substituting in lieu thereof the following:
"CHAPTER 25. PHARMACY
The Practice of Pharmacy in the State of Delaware is declared a learned
professional practice affecting the public health, safety and welfare and is
subject to regulation and control in the public interest. It is further
declared to be a matter of public interest and concern that the Practice of
Pharmacy, as defined in this Act, merit and receive the confidence of the
public and that only qualified persons be permitted to engage in the practice
of Pharmacy in the State of Delaware. This Act shall be liberally construed
to carry out these objects and purposes.
It is the purpose of this Act to promote, preserve and protect the public
health, safety and welfare by and through the effective control and regulation
of the Practice of Pharmacy and of the registration of Drug Outlets engaged in
the manufacture, production, sale and distribution of drugs, medications, and
such other materials as may be used in the diagnosis and treatment of injury,
and prevention of illness and disease.
SECTION 2502 Definitions as used in this Chapter
"Board," "Board of Pharmacy," or "State Board of Pharmacy" as used in
this Chapter means Delaware State Board of Pharmacy.
"Dispense" or "Dispensing" means the preparation and delivery of a
prescription drug pursuant to a lawful order of a practitioner in a
suitable container appropriately labeled for subsequent administration or
use by a patient or other individual entitled to receive the prescription
drug.
"Drug" means (i) substances recognized as drugs in the official United
States Pharmacopoeia/National Formulary.or any supplement to any of them;
(ii) substances intended for use in the diagnosis, cure, mitigation,
treatment or prevention of disease in man or animals; (iii) substances
(other than food) intended to affect the structure or any function of the
body of man or animals; (iv) substances intended for use as a component of
any article specified in clause (i) (ii), (iii) of this subsection. It
does not include devices or their components, parts or accessories.
"Drug outlets" mean pharmacies, in-state or out-of-state wholesalers,
manufacturers, and non pharmacy veterinary outlets.
"Intern" means a person registered by the Board supervised by an
approved preceptor, who is completing practical experience requirements of
the Board prior to licensure.
"Internship/Externship" means a period of practical experience
established by Board regulation that must be completed by applicants
applying for licensure in the State.
"Manufacturer" means anyone who is engaged in manufacturing, preparing,
propagating, compounding, processing, packaging, repackaging, or labeling
of a drug, excluding the dispensing of a drug pursuant to a prescription.
"Over-the-Counter Medication," "OTC," means medicines or drugs which may
be sold without a prescription and which are packaged for use by the
consumer and labeled in accordance with the requirements of the statutes
and regulations of this State and the Federal Government.
9. "Pharmacist" means an individual licensed by this state to engage in the
Practice of Pharmacy in compliance with applicable Federal and State
Statutes and Regulations.
10. "Pharmacist-in-Charge" means a person licensed by the State of Delaware
to engage in the Practice of pharmacy; who has overall responsibility for
compliance with Statutes and Regulations that apply to the operation of a
pharmacy.
11. "Pharmacy" means an establishment licensed as such by the Board where
pharmacy may be practiced.
12. "Practice of Pharmacy" means the interpretation and evaluation of
authorized prescriber's order. This process shall include, but not be
limited to, the proper compounding, dispensing, labeling, packaging, and
administering of a drug to the patient or his/her agent. The practice
shall include the application of the pharmacist's knowledge of
pharmaceutics, pharmacology, pharmacokinetics, drug and food interactions,
drug product selection, and patient counselling. It shall also include:
Maintenance of proper records.
Proper safe storage of drugs.
Participation in drug utilization and or drug regimen review.
Participation in therapeutic drug selection and substitution of
therapeutically equivalent drug products.
Advisor to the practitioner as well as to the patient regarding
the total scope of drug therapy, so as to deliver the best care
possible.
The ability of a pharmacist to recommend over-the-counter products.
Monitoring drug therapy to determine if there is any potential
problem with doses, combinations of medications ordered or
non-compliance with the prescriber's orders.
The teaching of pharmacy, the practice in an industrial setting
which is directly related to the Practice of Pharmacy and the
activities of licensed pharmacists who are involved with
administrative duties, which are directly related to the Practice
of Pharmacy.
13. "Practitioner" means any person who is authorized by law to prescribe
drugs in the course of professional practice or research in this State.
14. "Preceptor" means a registered pharmacist approved by the Board who
supervises an intern.
15. "Prescription Drug" or "Legend Drug" means any drug required by Federal
or State law or regulation to be dispensed only by a prescription,
including finished dosage forms and active ingredients subject to section
503(b) of the Federal Food, Drug and Cosmetic Act.
16. "Prescription Drug Order" means a lawful written or verbal order of a
practitioner for a drug.
17. "Wholesale distribution" and "wholesale distributions" means
distribution of drugs to persons other than a consumer or patient, but does
not include:
The purchase or other acquisition by a hospital or other health
care entity which is a member of a group purchasing organization of a
drug for its own use from the group purchasing organization or from
other hospitals or health care entities which are members of such
organizations;
The sale, purchase, or trade of a drug or an offer to sell,
purchase, or trade a drug by a charitable organization described in
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section 501(c)(3) of the Internal Revenue Code of 1954 to a nonprofit
affiliate of the organization to the extent otherwise permitted by law;
C. The sale, purchase, or trade of a drug or an offer to sell,
purchase, or trade a drug among hospitals or other health care
entities which are under common control;
The sale, purchase, or trade of a drug or an offer to sell,
purchase, or trade a drug for emergency medical reasons;
The sale, purchase or trade of a drug, an offer to sell, purchase,
or trade a drug, or the dispensing of a drug pursuant to a
prescription; or
A transfer of prescription drugs by a pharmacy to another pharmacy
to alleviate a temporary shortage.
"Wholesaler distributor" means any one engaged in wholesale
distribution of drugs, including, but not limited to, manufacturers' and
distributors' warehouses, chain drug warehouses, and wholesale drug
warehouses; independent wholesale drug traders; and pharmacies that conduct
wholesale distributions.
"Therapeutically Equivalent" means drugs which contain the same active
ingredient(s) and are identical in strength or concentration, dosage form
and route of administration which are classified as being therapeutically
equivalent in the latest edition or supplement of F.D.A.'s Approved Drug
Product List.
"Approved Drug Products with Therapeutic Equivalent Evaluations" means
a text containing a list of prescription drug products by generic name
prepared from time to time by the Food and Drug Administration which
contains therapeutic evaluations.
SECTION 2503 State Board of Pharmacy; Appointment
(A) The State Board of Pharmacy, heretofore established and
hereinafter in this Chapter referred to as the "Board," shall consist of nine
(9) persons who shall be appointed by the Governor for terms of three (3)
years from the first day of July in the year of appointment.
(1) Five (5) of the nine (9) persons appointed shall be:
Graduates of a school or college of pharmacy accredited by
the American Council on Pharmaceutical Education at the time of
graduation; and
Licensed as pharmacists in this State; and
Residents of this State and actively engaged in the Practice
of Pharmacy in this State; and
Have five (5) years of experience in the Practice of Pharmacy
in this State after lIcensure.
Three (3) of the five (5) shall reside in New Castle County,
one (1) in Kent County, and one (1) In Sussex County.
The Governor shall appoint a committee of six (6) persons who
are residents of the State, at least three members of the
committee will be pharmacists licensed in Delaware. That
Committee will review the nominations and make recommendations to
the Governor.Such nominations shall be recommendations only and
shall not be binding in any manner upon the Governor.
(2) Four (4) of the nine (9) persons shall be appointed by the Governor and
shall be known as the "public members." Said public members shall be
residents of this State who have attained the age of majority and shall not be
nor ever have been a member of the profession of pharmacy, or a person who has
ever had any material financial interest In the providing of pharmacy service,
nor shall they have been related to someone engaged in the practice of
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pharmacy, nor shall they be engaged in any activity directly related to the
practice of pharmacy.
Vacancies occurring for any reason other than the expiration of term
shall be filled by the Governor for the remainder of the unexpired term.
Before entering upon the discharge of their official duties, the
members of the Board shall take and subscribe the oath as provided in
Article XIV of the Constitution.
SECTION 2504 Terms of Office.
(A) Length.
Except as provided in subsection (b), members of the Board of Pharmacy
shall be appointed for a term of three (3) years beginning July 1 in the year
of appointment, except that members of the Board who are appointed to fill
vacancies which occur prior to the expiration of a former member's full term
shall serve the unexpired portion of such term.
(B) Staggered Terms.
The terms of the members of the Board shall be staggered, so that the
terms of no more than three (3) members shall expire in any year.
Members of the Board at the time of enactment of this Chapter shall
serve the balance of their terms.
(C) Successorship.
A person who has never served on the Board may be appointed to the Board
two consecutive times, but no such person shall thereafter be eligible for two
consecutive appointments. No person who has been twice appointed to the
Board, or who has served on the Board for six years within any nine-year
period, shall again be appointed to the Board until an interim period of at
least one term has expired since such person last served.
(D) Any act or vote by a person appointed in violation of subsection (C)
shall be invalid. An amendment or revision of this Chapter is not sufficient
cause for any appointment or attempted appointment in violation of subsection
(C), unless such amendment or revision amends this section to permit such
appointment.
SECTION 2505 Removal of Board Members
(A) Grounds.
The Governor may remove a member of the Board for cause for one or more,
but not limited to, the following grounds:
The refusal or inability for any reason of a Board Member to perform
his duties as a member of the Board in an efficient, responsible and
professional manner;
The misuse of office by a member of the Board, whether or not to obtain
personal pecuniary or material gain or advantage for himself or another
through such office;
The violation of this Act or any of the rules and regulations adopted
hereunder.
Misconduct or incompetencies in the performance of his duties.
SECTION 2506 Organization.
(A) Officers.
The Board shall elect from its members a President and such other officers
as it deems appropriate and necessary to the conduct of its business. The
President of the Board shall preside at all meetings of the Board and shall be
responsible for the performance of all of the duties and functions of the
Board required or permitted by this Act. Each additional officer elected by
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the Board shall perform those duties normally associated with his position and
such other duties assigned to him from time to time by the Board.
Terms of Office.
Officers elected by the Board shall serve terms of one (1) year commencing
with the day of their election, and ending upon election of their successors.
Executive Secretary.
The Board shall elect annually, a licensed pharmacist who shall be an
ex-officio member of the Board without vote to serve as Executive Secretary.
The Executive Secretary shall be responsible for the performance of the
regular administrative functions of the Board and such other duties as the
Board may direct.
SECTION 2507 Compensation.
The members of the Board shall receive the sum of at least fifty dollars
(50 dollars) for each day, or fraction of a day, actually employed in the
discharge of their official duties and their necessary expenses while engaged
therein. Each member may not receive more than $500 each year in salary.
SECTION 2508 Meetings
Number.
The Board shall meet at least six (6) times a year to transact its
business. One such meeting held during each fiscal year of the State shall
be designated as the annual meeting and shall be for the purpose of electing
officers and for the reorganization of the Board. The Board shall meet at
such additional times as it may determine. Such additional meetings may be
called by the President of the Board, or by two-thirds of the members of the
Board.
Place.
The Board shall meet at such place as it may from time to time determine.
The place for each meeting shall be determined prior to giving notice of such
meeting.
Notice.
Notice of all meetings of the Board shall be given in a manner and
pursuant to requirements prescribed by law.
Quorum.
A majority of the members of the Board shall constitute a quorum for the
conduct of a Board meeting and, except where a greater number is required by
this Act, or by any rule or regulation of the Board, all actions of the Board
shall be by a majority of a quorum.
Open Meetings.
All Board meetings and hearings shall be open to the public in accordance
with the law.
SECTION 2509 Rules and Regulations.
The Board shall make, adopt, amend and repeal such rules and regulations
as may be deemed necessary by the Board, from time to time, for the proper
administration and enforcement of this Act. Such rules and regulations shall
be promulgated in accordance with the procedures specified in the
Administrative Procedures Act of this State. All rules and regulations
adopted prior to the enactment of this Chapter shall remain valid as if
enacted pursuant to this Section unless inconsistent with this Chapter.
SECTION 2510 Licensure Responsibil-Ity
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The Board shall be responsible for the control and regulation of the
Practice of pharmacy in this State including, but not limited to, the
following:
The licensing by examination or by reciprocity of applicants who
are qualified to engage in the Practice of Pharmacy under the
provisions of this Act.
The renewal of licenses to engage in the Practice of Pharmacy;
The determination and issuance of standards for recognition and
approval of degree programs of schools and colleges of pharmacy whose
graduates shall be eligible for licensure in this State, and the
specification and enforcement of requirements for practical training,
including internship.
SECTION 2511 Medications, Drugs, and Other Materials.
(A) Responsibility.
The Board shall also have the following responsibilities in regard to
medications, drugs, and other materials used in this State in the diagnosis,
mitigation and treatment or prevention of injury, illness and disease.
The regulation of the sale and the dispensing of medications, drugs,
and other materials including the right to seize any such drugs, and other
materials found to be detrimental to the public health and welfare by the
Board in accordance with 16 Del. C. Chapter 33;
The specifications of minimum professional and technical equipment,
environment, supplies and procedures for the compounding and/or dispensing
of such medications, drugs, and other materials within the Practice of
Pharmacy;
The control of the purity and quality of such medications, drugs, and
other materials within the Practice of Pharmacy;
The issuance and renewal of certificates of registration of drug
outlets for purposes of ascertaining those persons engaged in the
manufacture and distribution of drugs.
(B) The Board shall enforce the provisions of, and promulgate rules and
regulations to carry out, the law relating to pure drugs, as provided by
3315, Chapter 33 of Title 16.
SECTION 2512 Other Duties, Powers and authority.
The Board shall have such other duties, powers and authority as may be
necessary to the enforcement of this Act and to the enforcement of Board rules
and regulations made pursuant thereto, which shall include, but are not
limited to, the following:
Professional Associations.
The Board may join such professional organizations and associations
organized exclusively to promote the improvement of the standards of the
Practice of Pharmacy for the protection of the health and welfare of the
public and whose activities assist and facilitate the work of the Board and
may pay such amount as is necessary for the annual dues.
Seal.
The Executive Secretary of the Board shall keep the seal of the Board and
shall affix it only in such manner as may be prescribed by the Board.
The legal services will be provided by the Department of Justice
pursuant to Chapter 25 of Title 29.
Reports.
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The Board shall submit a written report to the Governor and to the Delaware
Pharmaceutical Society within three (3) months after the conclusion of the
fiscal year.
The President and Secretary may administer oaths in all matters before
the Board.
The Board may issue subpoenas to require the attendance of persons and
the production of books and papers for the purpose of conducting
investigations preliminary to hearings and for the purpose of eliciting
testimony at hearings. Persons who have been subpoenaed may be required to
testify in any and all matters within the jurisdiction of the Board.
Subpoenas shall be issued by the President or the Executive Secretary of
the Board and enforceable by Superior Court.
Fees.
All persons who are qualified under this Chapter shall be entitled to a
renewal biennially by submitting the fee required as well as showing
evidence of compliance with the continuing education requirements
established by the Board if applicable. Registrants who do not pay the fee
by the date due shall be assessed an additional $10. The amount to be
charged for each fee imposed under this Chapter shall approximate and
reasonably reflect all costs necessary to defray the expenses of the Board
as well as the proportional expenses incurred by the Division of
Professional Regulation in its service on behalf of the Board. There shall
be a separate fee charged for each service or activity, but no fee shall be
charged for a purpose not specified in this Chapter. The application fee
shall not be combined with any other fee or charge. At the beginning of
each calendar year, the Division of Professional Regulation, or any other
State agency acting in its behalf, shall compute, for each separate service
or activity, the appropriate Board fees for the coming year.
Grants.
The Board may receive and expend funds from parties other than the State,
provided:
(1) Such funds are awarded for the pursuit of a specific objective
which the Board is authorized to accomplish by this Act, or which the
Board is qualified to accomplish by reason of its jurisdiction or
professional expertise;
Such funds are expended for the pursuit of the objective for which
they are awarded;
Activities connected with or occasioned by the expenditures of
such funds do not interfere with or impair the performance of the
Board's duties and responsibilities and do not conflict with the
exercise of the Board's powers as specified by this Act;
Such funds are kept in a separate, special State account; and
Periodic reports are made to the Governor concerning the Board's
receipt and expenditure of such funds.
The Board has the power to contract for the specific objective of
the grant.
SUB CHAPTER II Pharmacists
SECTION 2513 Certificate requirement; exceptions.
No person who has not been issued a certificate as a pharmacist within
the meaning of this Chapter shall conduct or manage any pharmacy, drug or
chemical store, apothecary shop or other place of business for the
compounding or dispensing of any drugs, or chemicals which require by law a
practitioner's authority or for the compounding of prescriptions, except as
provided in this Chapter.
No person who has not been issued a certificate as a pharmacist within
the meaning of this Chapter shall compound, dispense, any drug, chemical, or
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pharmaceutical preparation upon the prescription of a practitioner or
otherwise or compound prescriptions, or order, except as an aid to or under
the supervision of a person holding a certificate as a pharmacist under this
Chapter.
(C) No owner or manager of a pharmacy, or drug store, or other place of
business, shall cause or permit any person other than one holding a
certificate as a pharmacist to compound, dispense any drug, or medicine,
except as an aid to or under the supervision of a person holding a certificate
as a pharmacist.
(D) Nothing in this section shall be construed to interfere with:
Any legally registered practitioner of the healing arts licensed
under the law of this State to dispense or compound his own
prescriptions or to prevent him supplying to his patients such
medicines as he may deem proper; or
The selling at retail of overthecounter preparations; or
The sale of non controlled drugs designated for veterinary use
which require a prescription by a business not licensed as a pharmacy;
provided that:
(a) The business is registered with the Board;
(b) The sale is authorized by a written or oral order from a
veterinarian licensed in this or another State.
Prior to dispensing an order from an outofstate
veterinarian, the seller must confirm and document that the
veterinarian is properly licensed in his State.
Oral orders must be confirmed by the veterinarian in
writing no later than 72 hours after the seller receives the
order.
(c) The written order or confirmation of an oral order must be
retained on the premises of the business for at least two years
after the original date of the order.
(E) Anyone who was licensed as an assistant pharmacist prior to the
effective date of this Act shall hereby be considered pharmacists under this
Act.
SECTION 2514 Application for license; examination
Every person who desires to be licensed as a pharmacist shall:
(1) File with the Secretary of the Board an application accompanied
by a fee that reflects the cost of the examination, duly verified
under oath, setting forth
the name and age of the applicant;
the place or places at which he studied and the time spent
in the study of the science and art of pharmacy; and
his experience in the compounding of practitioners'
prescriptions which he had under the direction of a legally
licensed pharmacist; and
(2) Appear at a time and place designated by the Board and submit to
an examination as to his qualifications for registration as a licensed
pharmacist.
SECTION 2515 Qualifications of Applicants for License.
(A) An applicant for a license as a pharmacist, except a renewal license,
shall:
1) Have graduated from a school or college of pharmacy accredited by
the American Council on Pharmaceutical Education at the time of
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graduation or, in the event that the applicant is a graduate of a
foreign school, have graduated and received the first professional
undergraduate degree from a pharmacy degree program which has been
approved by the Board.
Pass a National examination as may be approved by the Board.
Internship and Other Training Programs.
(a) All applicants for licensure by examination shall obtain
practical experience in the Practice of Pharmacy concurrent with
or after college attendance or both, under such terms and
conditions as the Board shall determine. The Board shall also
determine the necessary qualifications of any preceptors used in
any internship or other programs.
Be of good moral character.
SECTION 2516 Qualifications for Licensure by Reciprocity
(A) Requirements.
To obtain a license as a pharmacist by reciprocity, an applicant for
licensure shall:
Have submitted a written application in the form prescribed by
the Board.
Have attained the age of majority.
Have good moral character.
Have possessed at the time of initial licensure as a pharmacist
such other qualifications necessary to have been eligible for
licensure at that time in this State.
Have presented to the Board proof of initial licensure by
examination and proof that such license and any other license or
licenses granted to the applicant by any other State or States have
not been suspended, revoked, cancelled or otherwise restricted for any
reason except non-renewal or the failure to obtain required continuing
education credits in any State where the applicant is licensed but not
engaged in the practice of Pharmacy.
Have paid the fees specified by the Board for issuance of a
license.
(B) Eligibility.
No applicant shall be eligible for licensure by reciprocity unless the
state in which the applicant was initially licensed as a pharmacist also
grants reciprocal licensure to pharmacists duly licensed by examination in
this State, under like circumstances and conditions.
SECTION 2517 Renewal of License.
(A) On or before the first day of January biennially, each pharmacist
shall make application to the Secretary of the Board for a renewal of license.
(8) Every licensed pharmacist who desires to continue in the practice of
his profession shall, within thirty (30) days next preceding the expiration of
his license, file with the Board an application for the renewal thereof, which
application shall be accompanied by the fee prescribed in 2513 of this
Title. If the Board finds that the applicant has been legally licensed in
this state and is entitled to a renewal of license, it shall issue to him a
certificate attesting to that fact.
(C) If any pharmacist fails for a period of 60 days after the expiration
of his license, to make application to the Board for its renewal, his name
shall be erased from the register of licensed pharmacists. Such person in
order to again become registered as a licensed pharmacist shall be required to
pay all such biennial registration fees as had become due since the year his
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name was dropped as herein provided and shall also comply with the Board's
Continuing Education requirements for relicensure for such years.
(D) Continuing education. No renewal certificates shall be issued to a
pharmacist pursuant to this Section unless such pharmacist has submitted proof
to the Board of the required number of continuing education units obtained
through the satisfactory completion of an accredited program of continuing
professional education prescribed by Board Regulation. The number of
continuing education units (CEU's) required for relicensure shall not exceed 3
CEU's during any biennial registration. One CEU is equivalent to 10 hours of
continuing education. Any continuing education program that is currently
approved by the American Council on Pharmaceutical Education will
automatically qualify for continuing education credit. The Board shall renew
the license of a pharmacist who has completed a recognized alternative program
of compliance. Alternative programs may include any other program which the
Board deems equivalent to completing required continuing education units.
SECTION 2518 Discipline
(A) The Board may refuse to issue or renew or may suspend, revoke or
restrict the license of any person after due notice and hearing pursuant to
procedures established in compliance with Chapter 101 of Title 29,
Administrative Procedures Act, upon one or more of the following grounds;
Procuring or attempting to procure a license by fraud or intentional
misreOresentation;
Incapacity of a nature that prevents a pharmacist from engaging in the
practice of pharmacy with reasonable skill, competence and safety to the
public. This would include incapacity due to mental incompetence, a
physical condition, addiction to alcohol or narcotics or other dangerous
drugs.
Guilty of any act involving moral turpitude or gross immorality;
Guilty of a felony as defined by the Statutes of this State or the
United States;
Guilty of engaging or aiding and abetting an individual to engage in
the practice of Pharmacy without a license;
Guilty of any dishonorable, unethical or unprofessional conduct likely
to deceive, defraud or harm the public;
Gross negligence or incompetence in his practice as a pharmacist.
Failure to notify the Board that his license to practice pharmacy has
been subject to discipline, surrendered, suspended, or revoked by another
Board; or if the registrant has been found guilty of a felony.
Failure to provide the report required by section 2522.
OD Upon due notice and hearing, the Board may revoke or suspend any
license granted pursuant to this Chapter, if the Board determines that the
licensee, or a person employed by the pharmacy has violated any provision of
this Chapter, any regulation promulgated pursuant to section 2509 of this
Title or any law of this State or of the United States.
The hearing be conducted in accordance with the Administrative
Procedures Act Chapter 101 of Title 29.
Any person aggrieved by an order of the Board may appeal therefrom to
the Superior Court in the County where such person resided within thirty days
(30 days) after receipt of such order. If the hearing is held in absentia,
the order must be appealed within thirty days (30 days) of issuance. The
appeal to the Superior Court shall be on the record of the proceedings before
the Board.
SECTION 2519 Emergency Suspension
By a decision of five members, the Board may suspend any license prior to
a hearing simultaneously with the scheduling of a hearing if it finds that
the pharmacist continuing the practice is an imminent danger to the public
health and safety which warrants this action. The suspension shall continue
in effect until the conclusion of the proceedings, including judicial review
thereof, unless sooner withdrawn by the Board or stayed by the Superior
Court. The hearing must be held no later than thirty days (30 days) from the
date of service of the suspension order unless continued at the request of
the licensee.
SECTION 2520 Register
If the applicant for license as a pharmacist has complied with the
requirements sections 2514 and 2515 and 2516 of this title, the Board shall
enroll his name upon the register of pharmacists and issue him a license which
shall entitle him to practice as pharmacist for the remainder of the renewal
period. A certificate may be replaced if lost or destroyed upon the payment
of $10 by the registrant.
SECTION 2521 Use of Title
No person not legally licensed as a pharmacist shall take, use or exhibit
the title of pharmacist, or licensed or registered pharmacist or the title,
druggist, or apothecary, or pharmacy or medicine store or any other title or
description of like import.
SECTION 2522 Impaired Pharmacists; Reporting, Disciplinary Action
The Board may defer and ultimately take no action with regard to an
impaired licensee who voluntarily reports to the Board that he is impaired
and voluntarily signs an agreement, in a form satisfactory to the Board,
agreeing to not practice Pharmacy and to enter an approved treatment program
in accordance with this Section, provided that this Section should not apply
to a licensee who has been convicted of, pleads guilty to, or enters a plea of
nolle contendere to a felonious act prohibited by 16 Del. C. Ch. 47 or a
conviction relating to a controlled substance in a court of law of the United
States or any other state, territory or country. A licensee who is physically
or mentally Impaired due to addiction to drugs or alcohol may qualify as an
impaired pharmacist and have disciplinary action deferred and ultimately
waived only if the Executive Secretary of the Board is satisfied that such
action will not endanger the public and the licensee enters into an agreement
with the Board for a treatment plan approved by the Board, progresses
satisfactorily in such treatment program, complies with all terms of the
agreement and all other applicable terms of part C of this Section. Failure
to enter into such agreement or to comply with the terms and make satisfactory
progress in the treatment program shall disqualify the licensee from the
provisions of this Section and the Board shall activate an immediate
investigation and disciplinary proceedings. Upon completion of the
rehabilitation program in accordance with the agreement signed by the Board
the licensee may apply for permission to resume the practice of Pharmacy upon
such conditions as the Board determines necessary. Upon resumption of
practice, licensee's records shall not reflect any disciplinary action and all
records concerning his impairment shall be sealed and not considered public
records open to public inspection; provided however, that licensee consents
that should a further incident of the impairment come to light, the Board may
consider these records in imposing future disciplinary action.
The Board may defer and ultimately dismiss disciplinary action
brought under 2518 of this Chapter with regard to an impaired licensee who
does not qualify under subsection A so long as the licensee is progressing
satisfactorily in an approved treatment program in accordance with this
Section. A licensee who is physically or mentally impaired due to addiction
to drugs or alcohol may qualify as an impaired pharmacist and have
disciplinary action deferred only if the Board finds that such action will
not endanger the public and the licensee enters into an agreement with the
Board for a treatment plan approved by the Board and progresses
satisfactorily in such treatment program and complies with all terms of the
agreement.
The Board may require a licensee to enter into an agreement which
includes, but not be limited to, the following provisions:
1. Licensee agrees that his license shall be suspended or revoked
indefinitely under subsection (B) or who has voluntarily agreed not to
practice under subsection (A) hereof.
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Licensee will enroll in a treatment program approved by the Board.
Licensee agrees that failure to satisfactorily progress in such
treatment program shall be reported to the Board by the treating
professional who shall be immune from any liability for such reporting
made in good faith.
Licensee consents to the treating physician or professional of the
approved treatment program reporting to the Board on the progress of
licensee at such intervals as the Board deems necessary and such person
making such report will not be liable when such reports are made in good
faith.
The ability of an impaired pharmacist to practice shall only be
restored and charges dismissed when the Board is satisfied by the reports it
has received from the approved treatment program that licensee can resume
practice without danger to the public.
Licensee consents, in accordance with applicable law, to the release
of any treatment Information from anyone within the approved treatment
program.
The impaired licensee who has enrolled in an approved treatment
program and entered into an agreement with the Board in accordance with
subsection B hereof shall have his license suspended or revoked but
enforcement of this suspension or revocation shall be stayed by the length of
time the licensee remains in the program and makes satisfactory progress, and
complies with the terms of the agreement and adheres to any limitations on
his practice imposed by the Board to protect the public. Failure to enter
into such agreement or to comply with the terms and make satisfactory
progress in the treatment program shall disqualify the licensee from the
provisions of this Section and the Board shall activate an immediate
investigation and disciplinary proceedings.
Any pharmacist who has substantial evidence that a licensee has an
active addictive disease for which the licensee is not receiving treatment
under a program approved by the Board pursuant to an agreement entered into
under this Section, is diverting a controlled substance, or is mentally or
physically incompetent to carry out the duties of his/her license, shall make
or cause to be made a report to the Board. Any person who reports pursuant to
this Section in good faith and without malice shall be immune from any civil
or criminal liability arising from such reports. Failure to provide such a
report within a reasonable time from receipt of knowledge may be considered
grounds for disciplinary action against the licensee so failing to report, in
accordance with 2518 of this Chapter.
SECTION 2523 Penalties.
Whoever, not being licensed as a pharmacist, conducts or manages any
drug store, pharmacy or other place of business for the compounding,
dispensing or sale of any drugs, or medicine, or for the compounding of
physicians' prescriptions, contrary to section 2513 of this Title shall be
fined not less than one hundred dollars (100 dollars) nor more than one
thousand dollars (1,000 dollars).
Whoever, not being licensed as a pharmacist, compounds, dispenses or
sells any drug, medicine, or pharmaceutical preparation, either upon a
prescription or otherwise; and whoever, being the owner or manager of a drug
store, pharmacy or other place of business, causes or permits anyone not
licensed as a pharmacist, to dispense, sell or compound any drug, medicine,
or prescriptions contrary to Section 2513 of this Title shall be fined not
less than $100 nor more than $1,000.
Whoever, being the holder of any license granted under this Chapter,
continues, after the expiration of such license, and without renewing the
same, to carry on the business for which such license was granted, contrary to
section 2514 of this Title, shall be fined not less than one hundred dollars
(100 dollars) nor more than one thousand dollars (1,000 dollars).
Any person not legally licensed as a pharmacist or pharmacy who takes,
uses or exhibits the title, "pharmacist," or the title, "druggist," or
765
"apothecary" or a "pharmacy" or "medicine store" or any other title or
description of like import, contrary to section 2521 of this Title shall be
fined not less than one hundred dollars (100 dollars) nor more than one
thousand dollars (1,000 dollars). Each week that such a violation exists
shall constitute a separate and distinct offense.
(E) Justices of the Peace shall have original jurisdiction to hear
offenses under this Chapter.
SUB CHAPTER III Pharmacies
SECTION 2524 Permit Required for Each Pharmacy
No person shall operate any pharmacy within this State without first
having obtained a permit to do so from the Board. If anyone desires to
operate, maintain, open, or establish more than one pharmacy, separate
applications shall be made and separate permits issued for each. No permit
granted by the Board shall be assigned or otherwise transferred to another
person except upon such conditions as the Board might specifically designate
and then only pursuant to a written consent from the Board. A separate permit
is not required for sites designated as pharmacies within the same
institution at one general location provided that those sites are approved by
the Board.
SECTION 2525 Application and Fee for Permit
The application for a permit required by this Statute shall be made on a
form to be prescribed and furnished by the Board and shall be accompanied by a
fee established in Section 2512 of this Chapter.
SECTION 2526 Requirements for an Issuance of Permit
In determining if a permit should be issued, the Board shall consider the
following factors:
1. The Pharmacy will be conducted in full compliance with the law and
with rules and regulations of the Board.
2. The Pharmacy will be managed by a pharmacist-in-charge properly
registered in the State who can only serve in that position for one
pharmacy.
3. The location and appointments of the pharmacy are such that it can
be operated and maintained without endangering public health and
safety. In determining a danger to the public health OT safety, the
Board shall consider the following factors:
Applicant, principal, or anyone having controlling ownership
interest is of good moral character.
Any conviction of applicant, principal, or anyone having
controlling ownership interest under Federal or any State's law
for deceptive business practices or violations of drug law.
Any actions by a regulatory agency against the permit holder
or applicant, principal or anyone having controlling ownership
interest for violations of its Statutes and Regulations.
4. The application shall contain the name of a pharmacist-in-charge
who will assume the responsibility in writing for compliance with the
pharmacy, Controlled Substances and other applicable Statutes and
Regulations.
S. No permit shall be issued for the conduct of a pharmacy unless the
premises of such a pharmacy shall be equipped with proper sanitary
appliances and kept in a clean and orderly manner.
SECTION 2527 Hearings on applications; notice; hearing, records
(A) Before refusing an applicatiOn to conduct a pharmacy, and In other
cases where deemed advisable, the Board shall hold a hearing at which time,
the applicant shall be afforded an opportunity to be heard.
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SECTION 2528 Renewal and Lapse of Permit
(A)(1) Prior to the expiration date of a permit each drug outlet will
receive a renewal notice.
(2) If the permit holder fails for a period of sixty (60) days after the
expiration of the license to make application to the Board for renewal, that
person's name will be removed from the register of licensed drug outlets.
(3) No new permit will be granted except:
(a) Upon evidence to the Board of good and sufficientgrounds for the
failure to file the application for renewalwithin the time prescribed;
and(b) Upon payment of fees set forth in Section 2512 of this Title.
If a prescription department is going to be closed for more than
seven (7) consecutive business days, the Board must be notified five (5) days
prior to the temporary closing. The procedure established by Board
regulation must be followed.
The permit shall terminate if and when there Is a transfer of a
controlling interest in the business, or the business ceases legal existence
or diScontinues business or professional practice.
If a pharmacy closes permanently the Board must be notified fourteen
days (14 days) prior to the closing. The closing must be in compliance with
regulations established by the Board.
SECTION 2529 Revocation or Suspension of Permit; Notice and Hearing
The Board may, after due notice and opportunity for hearing, revoke or
suspend any permit when examination or inspection of the pharmacy discloses
that such pharmacy is not being conducted according to law or is being so
conducted as to endanger the public health or safety.
If the prescription department of any store having a permit to conduct
a pharmacy is closed for more than fourteen day (14 day) consecutive days, the
Board may revoke or suspend the pharmacy permit that had been granted to that
store, unless it be shown to the Board that the closing of the prescription
department was due to a cause satisfactory to the Board.
In determining a danger to the public health or safety, the Board
shall consider the following factors:
(1) Compliance with applicable State and Local Statutes and
Regulations.
<2) Any conviction of the principle or anyone having controlling
ownership interest under federal or any State's law other than minor
traffic offenses.
(3) Any action by a Regulatory Agency against the permit holder for
violations of its Statutes or Regulations.
(4) Whether the principle or anyone having controlling ownership
interest is of good moral character.
SECTION 2530 Appeals to Superior Court
Any person to whom the Board has refused to issue a permit to conduct a
pharmacy or whose permit has been suspended or revoked may appeal from the
decision and order of the Board to the Superior Court of the county in which
the pharmacy or proposed pharmacy in question is or is Intended to be located
at any time within thirty days (30 days) after the date of the receipt by the
applicant or permit holder of the decision of the Board. The appeal to the
Superior Court shall be on the record of the proceedings before the Board.
SECTION 2531 Availability of Permit Expiration Date
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(8) Notice shall be given and the hearing conducted in accordance with
the Administrative Procedures Act (Chapter 101 of Title 29) and this Chapter.
Permits issued under the provisions of this Sub Chapter shall:
Be available on site for inspection by authorized persons.
Expire on the last day of December biennially.
Not be transferrable.
SECTION 2532 Equipment Requirements; Penalty
The Board shall prescribe the minimum of the professional and
technical equipment and texts which a pharmacy shall at all times possess.
Whoever violates this Section shall be fined not more than fifty
dollars (50 dollars).
SECTION 2533 Prescriptions; Preservation of Record
Every proprietor or manager of a pharmacy shall keep a suitable book or
file, in which shall be preserved for a period of not less than three years
(3 years) the original of every prescription compounded or dispensed at such
pharmacy. Such book or file of original prescriptions shall at all times be
open to inspection by duly authorized agents of the Board and the Board of
Health.
SECTION 2534 Prescription Department; Custody of Keys; Absence of
Custodian:
Sign; Merchandise
The owner of the business or the pharmacist making application for a
permit to conduct a pharmacy must agree to place his entire stock of
prescription drugs, chemicals and preparations used in compounding
medicines and prescriptions, and all opened packaged drugs, liquids,
tablets, pills or preparations of whatever character the dispensing or
sale of which is restricted to a registered pharmacist, in a room or
adequately partitioned- off section of the pharmacy or storeroom, which
room or section must be provided with a door or doors which can be locked
when the store is without the attendance and supervision of a pharmacist.
No one but a pharmacist shall be able to unlock and lock the
prescription department.
There must be a sign in the vicinity of the prescription department
which shows the names of the pharmacists employed at the pharmacy or at
least the pharmacist on duty.
Nothing contained in this Section shall be construed to prevent the
use of the balance of the store for the sale of other merchandise when the
room or partitioned-off section shall be closed and locked as provided for
in this section.
When the requirements of this section are faithfully complied with, a
pharmacist may be absent from the pharmacy without the necessity of
closing the merchandising section of the store. During such absence, the
prescription room, or partitioned-off section must be locked until the
return of the pharmacist to duty.
No permit shall be issued for the operation of a pharmacy unless the
prescription department, being the room or partitioned-off section
aforementioned, meets the following requirements:
I. The department shall occupy at least 250 square feet of floor
space excluding a storage room.
2. The prescription counter must be at least 18 inches wide. It must
have four linear feet, kept clear and free of all merchandise and
other materials not currently in use in the practice of dispensing and
compounding, for each pharmacist working concurrently on dispensing
and compounding.
768 Chapter 206
The counter shall contain an additional space for computers if
that is applicable.
The aisle behind the counter must be at least 30 inches wide and
shall be kept free of obstruction at all times. Prescription
departments which exist on the effective date of this section are
exempt from these requirements unless the department is enlarged or
relocated within the store.
SECTION 2535 Inspections
The Board and its duly authorized agents and representatives and the
State Board of Health and its duly authorized agents and representatives may
inspect in a lawful manner the medicines or drugs or drug products or domestic
remedies which are manufactured, packed, packaged, made, sold, distributed,
dispensed, offered for sale, exposed for sale or kept for sale in the State
and for this purpose may enter and inspect during business hours any pharmacy
or other place in this State where medicines or drugs or drug products or
domestic remedies are manufactured, packed, packaged, made, distributed,
dispensed, so/d, offered for sale, exposed for sale or kept for sale.
Authorized agents of the Board may inspect and copy records required
to be kept by this Chapter; inspect within reasonable limits and in a
reasonable manner, premises and all pertinent equipment, finished and
unfinished materials, containers and labeling found therein. All other
things, therein, including records, files, papers processes, controls and
facilities bearing on a violation of this Chapter; and inventory any stock of
medications therein and obtain samples thereof.
SECTION 2536 Labeling
(A) Any person prescribing any drug to be prepared by a pharmacist for the
use of a patient or any third person must, as a part of the prescription,
include directions describing the exact method by which the drug or medicine
prescribed must be taken or administered. Blank prescriptions or
prescriptions solely bearing the notation "as directed" are prohibited.
(B) Any pharmacist licensed within this State to dispense drugs or fill
prescriptions issued by practitioner shall affix to every container in which
any drug is sold or dispensed, a label containing the following information:
The prescription number;
The date such drugs were originally dispensed to the patient;
The patient's full name;
The brand or established name and strength of the drug to the
extent that it can be measured;
The practitioner's directions as found on the prescription;
The practitioner's name;
The name and address of the dispensing pharmacy or practitioner.
(C) Practitioners who, for good reason, do not wish to reveal the name or
strength of the drug prescribed to the patient shall so inform the pharmacist
by a notation on the face of the prescription. However, practitioners who
sell or dispense drugs directly to patients shall label all such drugs in
accordance with this section with the exception of a prescription number.
Section 2537 Penalties
Whoever violates this Sub Chapter, except Section 2532 of this Title, shall
be fined not more than twenty-five dollars (25 dollars) for each offense.
Every day any such violation continues shall constitute a separate and
distinct offense.
Section 2538 Non-Resident Pharmacies
Any pharmacy located outside this State which ships, mails, or delivers in
any manner, controlled substances or any prescription drugs into the State
shall be considered a non-resident pharmacy for the purposes of this
Chapter 206 769
770 Chapter 206
subchapter. No non-resident pharmacy shall ship, mail or deliver any
controlled substance or prescription drug to a patient in this State unless
first having obtained a permit from the Board.
Section 2539 Service of Process; Registered Agent
Each non-resident pharmacy shall designate a resident agent in Delaware
for Service of Process. Any such non-resident pharmacy that does not so
designate a registered agent that ships, mails or delivers prescription drugs
or controlled substances into the State of Delaware shall be deemed to have
appointed the Secretary of State of the State of Delaware to be its true and
lawful attorney upon whom may be served all legal process in any action or
proceeding against such pharmacy growing out of or arising from such
shipping, mailing or delivering prescription drugs or controlled substances.
A copy of such Service of Process shall be mailed to the non-resident
pharmacy by the complaining party by certified mail, return receipt
requested, at the address of such non-resident pharmacy as designated on the
application for a permit filed with the Board. Any such non-resident
pharmacy which does not obtain a permit in this State, shall be deemed to
have consented to Service of Process on the Secretary of State as sufficient
service.
Section 2540 Conditions of Permit
A non-resident pharmacy shall:
Provide the location, names and titles of all principal corporate
officers and all pharmacists who are dispensing prescription drugs or
controlled substances to residents of this State. A report containing this
information shall be made upon application for a permit, on a biennial
basis thereafter, and within 30 days after any change of office, corporate
officer, or pharmacist.
Certify that it complies with all lawful directions and requests for
information from regulatory or licensing agencies of the State in which it is
licensed and will comply with all such requests made by the Board pursuant to
this section. The non-resident pharmacy shall maintain, at all times, a valid
unexpired license, permit or registration to conduct the pharmacy which
complies with the laws of the State in which it is a resident. A non-resident
pharmacy must maintain patient profiles in compliance with the Board
regulations and must comply with the Delaware Drug Product Selection Act, 24
Del. C. Section 2553, and must provide pertinent patient medication
information. Prior to being issued a permit, the non-resident pharmacy must
provide the Board with a copy of the most recent inspection report and
thereafter must provide the Board with inspection reports within 60 days after
receipt from the regulatory licensing agency of the State in which it is a
resident.
Certify that it maintains its records of prescription drugs dispensed
to patients in this State so that the records are readily retrievable from
the record of drugs dispensed for other patients.
As a condition of being granted a permit under this section,a non-resident
pharmacy agrees that during its regular hours of operation, but not
less than 6 days per week, for a minimum of 40 hours per week, it will
provide a toll-free telephone service to facilitate communications between
patients in this State and pharmacists at the facility who have access to the
patients' records and that this toll-free number shall be disclosed on the
label affixed to each container of drugs dispensed to patients in this State.
The Board will report any action it takes against the non resident
pharmacy to the Board in the State where the pharmacy Is physically located.
SUB CHAPTER IV Pharmaceutical Establishments other than Pharmacies
Section 2541 Requirements as to Pharmaceutical Activities not carried on in
a Pharmacy.
(A) No drugs, medicines, toilet preparations, dentifrices or cosmetics
shall be manufactured, made, produced, packed, packaged, or prepared within
this State except under the personal and Immediate supervision of such
Chapter 206 771
persons as may be approved by the Board after investigation and determination
by the Board that they are qualified by scientific or technical training or
experience to perform such duties of supervision as may be necessary to
protect the public health and safety.
(8) No person shall manufacture, make, produce, pack, package, prepare or
distribute on a wholesale basis to persons other than the ultimate consumer
any such articles without first obtaining a permit so to do from the Board.
The permit shall be subject to such rules and regulations with
respect to storage and handling of drugs, the establishment and maintenance of
drug distribution records, and compliance with Federal, State, and Local Law
as the Board may from time to time adopt for the protection of the public
health and safety.
Nothing in this subchapter shall be construed to apply to those t;
operating pharmacies.
Section 2542 Applications and fees for permits.
The application for a permit required under Section 2525 of this
Title shall be made on the form to be prescribed and furnished by the Board
and shall be accompanied by a fee of two hundred dollars (200 dollars).
Separate applications shall be made and separate permits issued for
each separate place of manufacture, making, production, and packing,
packaging, preparation or distribution on a wholesale basis to persons other
than the ultimate consumer.
Applicants must meet the minimum requirements for persons engaged in
the wholesale distribution of drugs mandated by 21 CFR Part 205.
Section 2543 Permits; display; transfer; term
Permits issued under the provisions of this subchapter shall:
Be displayed in a conspicuous place In the laboratory or place for
which issued;
Not be transferable;
Expire on the last day of December biennially.
Section 2544 Inspections
The Board and its duly authorized agents and representatives and the
State Board of Health and its duly authorized agents and representatives may
inspect in a lawful manner the medicines or drugs or drug products or domestic
remedies which are manufactured, packed, packaged, made, sold, distributed,
dispensed, offered for sale, exposed for sale or kept for sale in the state
and for this purpose may enter and inspect during business hours any pharmacy
or other place in this State where medicines or drugs or drug products or
domestic remedies are manufactured, packed, packaged, made, distributed,
dispensed, sold, offered for sale, exposed for sale or kept for sale.
Authorized agents of the Board may inspect and copy records required
to be kept by this Chapter; inspect within reasonable limits and in a
reasonable manner, premises and all pertinent equipment, finished and
unfinished material, containers and labeling found therein. All other things,
therein, including records, files, papers processes, controls and facilities
bearing on a violation of this Chapter and inventory any stock of medications
therein and obtain samples thereof.
Section 2545 Hearings.
Any person aggrieved by any Board decision, rule, or regulation promulgated
by the Board under this subchapter shall be entitled to have his complaint set
down for hearing by the Board. Requests for such hearings shall be made in
writing and shall specify in detail the basis for the complaint. The hearing
shall be conducted in accordance with the Administrative Procedures Act,
Chapter 101 of Title 29.
Section 2546 Appeals to Superior Court
Any person aggrieved by an order of the Board may appeal therefrom to the
Superior Court in the county where such person resided within thirty (30) days
after receipt of such order. If the hearing is held in absentia, the order
must be appealed within thirty (30) days of issuance. The appeal to the
Superior Court shall be on the record of the proceedings before the Board.
Section 2547 Penalties
Whoever violates this subchapter; or whoever, being a permittee under
this subchapter, violates any of the conditions of his permit or any of the
rules or regulations adopted by the Board in pursuance of its power shall be
fined not more than fifty dollars (50 dollars) for each offense. Each day
such violation continues shall constitute a separate and distinct violation.
In addition to the penalties set out in Subsection A above, upon
conviction of a permittee under this section, or a finding by the Board of a
violation of this subchapter or the Prescription Drug Marketing Act, the
Board may suspend or revoke the permit.
SUB CHAPTER V Prohibited Acts; Penalties Generally; Enforcement
Section 2548 Use of certain descriptive titles. Nothing in this chapter
shall be construed to prohibit the use of the phrase, "proprietary medicine
store," "patent medicine store" or "health and beauty aids."
Section 2549 Fraud; misrepresentations; false affidavits.
Any permit or renewal thereof obtained through fraud or by any false
or fraudulent representation shall be void and of no effect in law.
Whoever makes any false or fraudulent representation for the purpose
of procuring a license, or renewal thereof, either for himself or for another,
shall be fined not less than one hundred dollars (100 dollars) nor more than
one thousand dollars (1,000 dollars).
Section 2550 Entry and inspection; penalty.
Whoever in any manner hinders an entry or inspection under Section 2544 and
section 2535 of this Title shall be fined not more than five hundred dollars
(500 dollars) for each offense.
Section 2551 Jurisdiction.
Justice of the Peace shall have jurisdiction over any offenses under this
Chapter.
Section 2552 Prosecution; duty of Attorney General.
Upon receiving information that any provisions of this chapter have been
or are being violated, the Executive Secretary of the Board shall investigate
the matter, and, upon probable cause appearing, shall, under the direction of
the Board, file a complaint and prosecute the offender before the Board. The
Attorney General, upon request of the Executive Secretary, shall take charge
of and conduct the prosecutions.
Section 2553 Substitution of drugs; penalty; exception.
(A) Substitution prohibited. Any

LAWS
OF THE
STATE OF DELAWARE
ONE HUNDRED AND THIRTY- SIXTH
GENERAL ASSEMBLY
FIRST SESSION COMMENCED AND HELD AT DOVER
On Tuesday, January 8, A. D.
1991
SECOND SESSION COMMENCED AND HELD AT DOVER
On Tuesday, January 14, A. D.
1992
VOLUME LXVIII
Part II